Have You Hired a Criminal Today?

What do elections in Washington state, census workers, and employment discrimination have in common?

Criminals. Specifically, convicted felons.

There's a new trend emerging in our country, a trend that is as misguided as it is dangerous. The trend is to file lawsuits challenging the use of criminal background checks as discriminatory, based on the theory that certain minorities are represented disproportionately among convicted felons.

The scary thing is that some of these challenges are actually succeeding.

Washington state's constitution bars convicted felons from voting. Six felons, who also happen to be minorities, claimed that although this felon disenfranchisement law may not have been enacted with a discriminatory purpose, it interacts with a racially discriminatory criminal justice system and, as a result, racial minorities are disproportionately denied the right to vote.

The trial court twice dismissed these claims, but twice the Ninth U.S. Circuit Court of Appeals (the most reversed circuit court in the country) reversed the district court. The second time, the appeals court ordered judgment in favor of the plaintiffs, finding that the "the discriminatory impact of Washington's felon disenfranchisement is attributable to racial discrimination in Washington's criminal justice system" and therefore violates the federal Voting Rights Act. You can read the whole sordid mess here. (The judges in the 2-1 majority were both Carter appointments. Read more about the Carter legacy here.)

Across the country, a class action was filed in the U.S. District Court for the Southern District of New York, alleging that the U.S. Census Bureau unlawfully discriminates against minorities in its hiring process by conducting criminal background checks and requiring applicants to provide information regarding their arrest and conviction histories. So, in the view of the plaintiffs, there is nothing wrong with permitting murderers and rapists to go door-to-door to count heads, all in the name of good government.

This approach will soon spread to the employment context. In fact, there have been a few such scattered cases over the last five or six years, but that trickle will soon become a serious wave. Aside from attempting to force employers to disregard criminal history as a factor in hiring decisions, this trend will put employers in a terrible fix, due to another social justice-inspired concept, negligent hiring.

Although they may vary somewhat from state to state, negligent hiring claims generally go something like this -- (1) an employee performs a bad act; (2) the employee is inherently unfit or has committed previous acts from which unfitness can be inferred; (3) the employer has actual or constructive notice of the employee’s unfitness; and (4) injury results from the employee's actions. Where an employer fails to perform an adequate background check and, as a result, hires an unfit -- perhaps even violent or criminal -- employee, you have a classic example of negligent hiring.

When this latest trend takes hold, however, the employer will be faced with the Morton's fork of either performing background checks, thus risking a discrimination lawsuit, or not performing such checks and risking negligent hiring claims.

This is what happens when liberals and the courts attack everything -- soon the attacks are turned upon themselves. But the trial lawyers don't care because they don't get hurt. Employers get hurt, and when employers suffer, so do their employees or the prospective employees who will never get hired.

The most galling aspect of this entire mess is that it centers around and is intended to benefit people who deliberately broke serious laws and were convicted. Why bother sending them to prison? If employers cannot choose not to hire convicted felons and states cannot bar them from voting, is there any basis on which choices can be made? And what's next -- you can't discriminate on the basis of education level? experience? work history? Aren't all of these susceptible to the same challenges as criminal history?

In National Review's first issue, William F. Buckley said of his creation, "It stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it." To the trial lawyers and all those who so diligently work to make sure convicted felons stop by our houses and populate our workplaces, I say, Stop!