Share

Opinion: Columnists

Sunday Reflection: Ken Masugi: Labor Department is wrong place for Tom Perez

|

Absorbing President Obama's emotional rhetoric about school and workplace safety, we should be stunned to discover that his administration forbids employers from using criminal background checks on job applicants.

We are seeing the bureaucratic logic of ill-designed policies intended to prevent racial and other forms of discrimination but absolutely perverse in their results. To advance and develop such policies, Obama has found the ideal nominee for secretary of labor in Montgomery County, Maryland's own Tom Perez.

Just this year, the Office of Federal Contract Compliance Programs, or OFCCP, in the Department of Labor foisted these allegedly anti-discrimination policies on private employers with federal contracts.

Its shaky rationale was that imposing initial criminal background checks on job applicants burdens various minorities disproportionately and hence illegally. In the words of OFCCP Directive 306, such efforts to produce a criminal-free workforce "are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies."

But the criminal background check in fact prevents an employer from using invidious prejudices to make employment decisions. Example: In his 2008 campaign, Obama repeated the urban myth that more black men are in jail than in college, showing that people who should know better do rely on stereotypes. It makes better sense to use a standard based on actual behavior, such as having a criminal record.

However, under the government's rules, the employer could ask only a successful job applicant about a criminal past. The employer could withdraw his offer, only if the crime were shown to be detrimental to the job. Yet, even at this stage, the frustrated applicant, aided by the government, might be able to sue the prospective employer for discrimination.

There is a way to protest this bureaucratic madness. As secretary of labor, Perez would extend this numbers-driven "disparate impact" test of whether a law is discriminatory. His continued advocacy of these policies as assistant attorney general for civil rights at the Department of Justice reflects his Maryland record. His nomination must be stopped.

Perez would have free rein to impose employment rules on virtually all employers who have federal contracts. The OFCCP covers mega-corporations such as Boeing, as well as a small producer of Mexican food.

Such federal contractors number more than 140,000 and receive $533 billion in federal contracts and are in every state and congressional district. To protect themselves from charges of illegal discrimination, employers resort to hiring by quotas, thinking this affords cheap protection.

Sadly, such fanaticism detracts from aggressive enforcement of existing civil rights laws. Illegal discrimination can be discovered, documented and disciplined without imposing such irrational tests.

The OFCCP bureaucrats' version of discrimination assumes that there are "ethnic and racial disparities in the criminal justice system." Blacks and Hispanics are a disproportionate number of those incarcerated, because they are arrested and convicted of crimes disproportionately.

In the state of Maryland, for example, majority-black Prince George's County and Baltimore City account for these numbers. Contrary to the bureaucrats' assertions, the disparate numbers do not result from illegal treatment or discrimination.

The bureaucratic high-handedness stems from the way the OFCCP was created, not by legislation but by presidential Executive Order 11246, issued by Lyndon Johnson. President Obama could modify this order by a pen stroke, making it even more overbearing, and all the better for Perez to administer.

The Perez nomination offers Congress, specifically the Senate, an opportunity to act. Every senator who rejects the disparate impact test and the OFCCP's subsequent prohibition on criminal background checks must filibuster this nomination.

There are other Labor Department responsibilities, as well, such as unions, OSHA, immigrant workers and Obamacare. But the Obama employment directive on criminal background checks suffices to justify stopping this nomination.

Ken Masugi, a political scientist and author, spent 10 years in federal government civil rights enforcement.

View article comments Leave a comment