Government Hypocrisy

Posted on June 26, 2015 in Consulting

I detest when my tax dollars (and yours) are wasted by agencies of the executive branch in pursuit of hypocritical agendas.  During my last lunch and learn presentation I discussed a few examples.  For those who missed it, here is a recap of a few EEOC action items that reek of hypocrisy and might make you irate too.

EEOC campaign against use of criminal conviction records

The EEOC has sued five employers in the past six years claiming each discriminated against minorities with policies that screened applicants with criminal convictions.

  • Peoplemark: Suit filed September 29, 2008;
  • Freeman: Suit filed September 30, 2009;
  • Kaplan Higher Education: Suit filed December 21, 2010;
  • Dollar General: Suit filed June 11, 2013; and
  • BMW: Suit filed June 11, 2013.

The first problem with the EEOC’s move is that it waited until April 25, 2012, after filing the first three suits, to issue guidelines on the topic.  Those guidelines state:

“An employer’s neutral policy (e.g., excluding applicants from employment based on criminal conviction) disproportionately impacts a protected group, which violates the law if not job related and consistent with business necessity.”

More troubling is that employers fighting these EEOC lawsuits discovered an interesting twist: the EEOC has a policy that considers criminal conviction records in its hiring process.  In the Dollar General case, which is on-going, Dollar General has demanded information about how the EEOC has enforced its criminal record policy.  The EEOC is fighting the request while simultaneously demanding ten years of documents from Dollar General. Now that’s hypocrisy!

The EEOC clearly is not the only government agency that conducts criminal record checks.  For an interesting example of how the government cannot get on the same page look at the opinion letter from the EEOC to the Census Bureau challenging the Bureau’s policy precluding employment of persons with convictions.  See http://www.eeoc.gov/eeoc/foia/letters/2011/titlevii_crimial_history.html

Fortunately, our constitution created three branches of government and the judiciary has called out the EEOC’s double standards.   For example, in the Peoplemark case the Court sanctioned the EEOC and ordered that it pay $750,000 to the employer.  Unfortunately, every dime spent by the EEOC – including the sanctions – comes out of our tax payer money.  And the worst news: the EEOC seems convinced that it should continue to pursue its agenda against the use of criminal convictions in employment.

EEOC policy on pregnancy accommodation

The EEOC takes the position (in published guidance) that pregnant women are similarly situated to injured workers, and thus an employer must provide pregnant women the same form of accommodation as someone hurt on the job.  I wrote about this issue in last month’s newsletter when discussing the recent Supreme Court case, Young v. UPS. 

In the Young case, the Supreme Court ridiculed the EEOC’s position and guidance on the topic calling it severely limited because “of timing, consistency, and thoroughness of consideration.”  Our highest Court pointed out that the EEOC’s guidance was inconsistent with positions for which the Government has “long advocated.”  It cited to a 1996 case in which the Government took an opposite position.  The Court also questioned how the EEOC and Department of Justice could take contradictory positions.  The DOJ, arguing on behalf of the United States Postal Service, had previously taken the position that pregnant employees with work limitations are not similarly situated to employees with similar limitations caused by on-the-job injuries and thus not entitled to the same treatment.  Yet, here the EEOC took the exact opposite position. It’s a sad state of affairs when the Supreme Court, the highest court in the land, has to point out to government agencies the hypocrisy in their positions.

On September 16, I will host another lunch and learn.  I would love to hear from you about topics you would like me to address.


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