WAGUESPACK: Some Stories Are More Complex Than Others

You can’t judge a book by its cover.

I can only assume that some marketing-minded publisher way back when originally coined this phrase in an effort to overcome a horrendous cover and boost readership and sales of a well-written book. While that may have been the original intent, over time this saying has been commonly used to justify all sorts of actions and encourage someone to overlook a bad first impression.

I guess we should not be surprised that Washington has flipped this saying on its head to justify one of their actions. In fact, the Equal Employment Opportunity Commission (EEOC) is now requiring that employers must judge the book solely by its cover. It is refusing to allow the employer to view a critical chapter in the applicant’s life story.

The EEOC issued guidance last year restricting employers from using criminal background checks to make employment decisions. This policy is a federally induced tripwire for employers who are desperately trying to fill job openings in an informed and responsible manner. As we embark as a state on the challenge of filling the 250,000 skilled worker positions needed to construct the more than $70 billion in new projects announced, employers are being prohibited by the Feds from relying on criminal histories as a basis for extending job offers to applicants. This is despite the fact that most states have laws allowing or sometimes even mandating these types of checks.

In Louisiana, there are a number of agencies, as well as boards and commissions that by law require a criminal background check for employment with the department or within a particular profession. Employment in child care, education, social work, health care, financial institutions, not to mention alcohol, firearms and explosives, are all areas wherein criminal background checks are authorized or required by state law.

The EEOC argues that relying on arrest and conviction records to make hiring decisions is discriminatory. Don’t we want to give employers the flexibility to consider this information as they decide whom best to build complex manufacturing or industrial facilities? Don’t we want to give them the flexibility to consider this information when determining who best to transport the goods produced there?

Texas is pushing back. Earlier this month, it filed a federal lawsuit attempting to strike down this EEOC guidance. In essence, Texas is arguing that Congress did not give the EEOC authority to set these restrictions and that it should have the right to enforce its own rules. Sounds like a pretty reasonable argument to me. The states should be allowed to legislate responsibly in this area.

The reality is that we are a forgiving nation. We are all human and we all make mistakes. There are countless individuals that have been arrested and convicted in the past of crimes but who are perfectly able to contribute effectively in the workplace. We know that for countless others still incarcerated we simply must do a better job of training and educating them to re-enter society ready to be productive citizens at the appropriate time.

Having said that, how can the EEOC step in and mandate under threat of lawsuit to tell employers they cannot make hiring decisions that best meet the needs of their workplace based upon prior arrests and convictions? Is that really the role of government? Will it next be discriminatory to make hiring decisions based upon educational background? Will it soon be discriminatory to make hiring decisions based upon work ethic?

The age-old saying is correct: you should not judge a book by its cover. The chapters often leave a more complex and descriptive impression than you would have imagined by just browsing the exterior. The EEOC should turn the page on this unnecessary and intrusive guidance and let employers sort through the unique story of each job applicant they consider.



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