I Was Too Harsh?

Several observers, including Megan McArdle, said that I was too harsh when I wrote this in a post about pre-employment screening:

I understand that this is exactly what the Left is shooting for "“ an environment where the competent have no advantage over the incompetent.  If employers are resorting to FICO scores, it just demonstrates how all the other reasonable avenues of obtaining information have been closed to them.

Unreasonable?  Perhaps.  Or perhaps not.  From the US EEOC site:

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way....

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.


Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer's use of conviction data in making an employment decision.

This means that a company cannot, according to the EEOC, maintain a blanket policy of, for example, never hiring anyone convicted of murder or bank robbery.  Just take that as your happy thought for the day next time you are snuggling up for bed at night in some hotel, wondering if you are in a state where the hotel was allowed to screen its night-time employees for felonies.

My sense is that the Left is shooting for employment based on paper qualifications rather than perceived capability.   I wrote before that the Left has cheered on tort actions that have almost shut down the provision of job references.  Or look at civil service or schools.  Hiring is based on minimum qualifications (e.g. possessing the correct teaching degree) rather than ability.  Promotion is based on seniority rather than performance.  Every grievance system ever invented makes it almost impossible to fire employees even for cause, much less for performance shortfalls.


  1. me:

    The US is becoming increasingly hard to live in due to overregulation (and, honestly, every time I have to go through the security theater at airports, I am reminded that it's the left as well as the right pushing hard to make things worse). The shocking thing to me is that the guardians in charge of injecting some sense into the system - judges and juries - are not doing their jobs but instead are backing nonsensical decisions... what has the US come to, if Germany feels less bureaucratic and China more free?

  2. chris:

    just don't expect the gubmint to follow its own rules

  3. anon:

    "My sense is that the Left is shooting for employment based on paper qualifications rather than perceived capability."

    No, their going for nepotism and networking -- only hiring friends.

  4. mark ii:

    Another big problem is the fraud in the worker compensation system. As an employer we have no visability to employees that have major worker compensation claims in the past. I had a single employee essentially bankrupt my business with a fraudulant worker compensation case. Once they claimed an injury there was nothin I could do about it.

  5. ruralcounsel:

    "blanket policy"

    So smaller businesses can have an advantage because they don't need to write this hiring policy stuff down. Cool! Never write down what you can speak, never speak when you can gesture, never gesture when you can remain silent.

  6. EarlW:

    Once people believe that they have the "Right to a Job", any criteria is too much.

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