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Pepsi and Political Correctness

Last week, I noted that the U.S. Equal Employment Opportunity Commission has issued new “Enforcement Guidance” designed to make it much riskier for employers to consider arrest and conviction records in hiring decisions, on the grounds that such considerations can have a “disparate impact” on the basis of race.  But later last week, with some help from the Center for Equal Opportunity, the House of Representatives passed by voice vote an appropriations amendment that will forbid the EEOC from using any of its funds “to implement, administer, or enforce” this guidance. Kudos to Representative Ben Quayle (R., Ariz.), who introduced the amendment, which was sponsored by Representatives Steve Scalise (R., La.), Cliff Stearns (R., Fla.), and Rob Woodall (R., Ga.).

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The concern with the EEOC’s priorities in this area is not fanciful, by the way:  In a press releaseearlier this year, the Obama administration announced that Pepsi “has agreed to pay $3.13 million and provide job offers and training”after an EEOC “investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.”
This appears to be a straight “disparate impact” claim. That is, there is no claim that Pepsi’s policy on its face treated applicants differently on account of race, or was designed to exclude blacks, or was not evenhandedly applied — just that blacks were, statistically, more likely to be excluded by the policy and that Pepsi, in the opinion of the EEOC, did not have a good enough reason for thinking that people without criminal records would be better employees than people with criminal records.

The administration has repeatedly promised to ramp up its use of disparate-impact claims (not only in employment, but in other areas of civil-rights enforcement — like mortgage lending, school discipline, voter ID requirements — and even in environmental law), and in this area the Obama administration is as good as its word.

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You may have followed the controversy last week when the Chronicle of Higher Education decided to fire one if its blog-writers after she wrote critically of several recent Ph.D. theses in the black-studies area and of black-studies departments generally.  The Chronicle’sstatement claims that Ms. Riley was fired because her post “did not conform to the journalistic standards and civil tone” required of such posts, that it did not meet “basic editorial standards for reporting and fairness,” and that it was not even “informed opinion.” The contrary view is that she was fired because what she wrote was politically incorrect and so the Chronicle is unwilling to stand between her and the mob.

Now, of course one can adduce standards that Ms. Riley’s post does not meet. It is a blog post, after all, and the genre is characterized by punchiness rather than meticulous scholarship. But that does not mean that we have no choice but to take the Chronicle at its word. For it is hard for me to imagine that the Chronicle’s left-wing bloggers, which alas it is my lot in life to have to read, have always met the mysterious “standards” to which Ms. Riley is ostensibly being held. Therefore one concludes that her firing is indeed because of her post’s political incorrectness and nothing else.

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And a one-day late Happy Mother’s Day to all you moms out there!