The Senate will soon vote on President Obama's nomination of former NAACP Legal Defense Fund official Debo Adegbile to head the Justice Department's Civil Rights Division. There are a number of reasons many Republicans oppose the nomination, most prominent among them Adegbile's passionate and continued advocacy on behalf of Philadelphia cop-killer Mumia Abu-Jamal. But one objection to the nomination has received little public notice, and it involves a quiet but growing controversy over the issue of criminal background checks.
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past — well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory. In 2012, the EEOC issued "guidance" to the nation's businesses, citing statistics showing blacks and Hispanics are convicted of crimes at significantly higher rates than whites. Therefore, the EEOC ruled, excluding job applicants based on their criminal records would have "a disparate impact based on race and national origin."
The EEOC did not say past felonies could never be considered in job applications. But the guidance made clear that an employer who chooses not to hire a felon could have to present a detailed defense to the EEOC. "The employer needs to ... effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position," the guidance said. Employers who cannot prove to the EEOC's satisfaction that excluding a felon from a particular job is a "business necessity" could be in trouble. And whatever the outcome, the company could have its hands full with a costly lawsuit from the government.
"One bright-line policy you should not adopt is having a no-felons policy," EEOC commissioner Victoria Lipnic told the U.S. Chamber of Commerce in a March 2012 speech. "If you have that policy, that's going to be a problem if you're subject to an EEOC investigation."
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
Some members of the U.S. Commission on Civil Rights were appalled. Calling the EEOC guidance "deeply flawed," commission members Peter Kirsanow, Abigail Thernstrom, and Todd Gaziano said the EEOC was wrong to conclude that excluding felons is racially discriminatory; failed to consider the effect of recidivism; and didn't even find out how well or badly felons perform as employees. "The EEOC adduced no evidence regarding whether people with criminal records are better, comparable, or worse employees than people without criminal records," the commissioners noted.
At the moment, EEOC "guidance" does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.
As the Adegbile nomination nears a vote, the Civil Rights Commission's Kirsanow has written a letter to the Senate opposing Adegbile not just for his activities on behalf of Abu-Jamal -- still the hottest issue in the Adegbile debate -- but also for his support of the EEOC on background checks. "Mr. Adegbile's support for the guidance demonstrates his commitment to an ideological agenda at odds with the law and common sense," Kirsanow wrote.
One thing is clear in the nomination debate: Republican opposition to Adegbile doesn't matter. The whole point of Senate Majority Leader Harry Reid's decision to break the filibuster with respect to nominations was to empower Democrats to confirm Obama nominees all by themselves, with a simple majority of 51 votes. That allows Reid to tell Republicans what they can do with their opposition.
Of course some Democrats have doubts about Adegbile, too. Sen. Bob Casey -- many of whose Pennsylvania constituents remember the Abu-Jamal case well -- is one "no" vote. But barring some unforeseen circumstance, a nominee with distinctly out-of-the-mainstream views can sail through the Senate -- no matter what his confirmation will ultimately mean to millions of Americans who go to work every day.