Patterico's Pontifications

8/11/2010

Obama Administration: Employers Should Consider Hiring Criminals and Deadbeats, So As Not to Be Considered Racist

Filed under: General — Patterico @ 7:09 pm



I know: it sounds like something you’d read in a bad GOP version of “The Onion” — but it’s not:

Companies using criminal records or bad credit reports to screen out job applicants might run afoul of anti-discrimination laws as the government steps up scrutiny of hiring policies that can hurt blacks and Hispanics.

A blanket refusal to hire workers based on criminal records or credit problems can be illegal if it has a disparate impact on racial minorities, according to the Equal Employment Opportunity Commission. The agency enforces the nation’s employment discrimination laws.

“Our sense is that the problem is snowballing because of the technology allowing these checks to be done with a fair amount of ease,” said Carol Miaskoff, assistant legal counsel at the EEOC.

Listen: if it’s really true that blacks and Hispanics are more likely to be criminals and deadbeats — and note well, racists: I didn’t say it, the EEOC did — then maybe they should consider breaking fewer laws and paying their debts on time. That, I would think, would be the solution to any racial disparity — not forcing employers to hire criminals and deadbeats.

How far are we going to take this insanity? And how far can you push the American people before we say “enough”?

I know this much: if I were an employer, this would be yet another reason not to hire any more employees.

Well done, Barry. Well done indeed.

98 Responses to “Obama Administration: Employers Should Consider Hiring Criminals and Deadbeats, So As Not to Be Considered Racist”

  1. There is also the stupid belief among these twits at EEOC that the only hurdle for employment among the criminal underclass is that people can find out that they have a criminal background.

    Hint to EEOC: the criminal background is often a great clue to how good an employee someone is.

    Not to mention all the litigation that occurs when ones’ felon employees harm a customer or fellow employee …

    SPQR (26be8b)

  2. data mining people for to hire does seem kind of scary in a market where the employer holds all the cards

    happyfeet (19c1da)

  3. just imagine when our underclass is 99% data-driven

    happyfeet (19c1da)

  4. “Disparate impact” is always a red flag.

    Usually it means “There is no credible direct or even circumstantial proof of the required deliberate intention to discriminate and/or causation between that and whatever has happened, so we’re just going to pretend like there’s proof, and then punish accordingly.”

    Beldar (6921f4)

  5. At our local State U we received notice we must take a new racial survey (didn’t know there was an old one) as required by the feds to check up on diversity in employers who take federal money.

    Wonder why they would want to do that??

    Patricia (358f54)

  6. By the way, someone should point out: The EEOC’s position is actually not supported by existing federal precedent from the SCOTUS on down, and unless federal law is radically changed, that position will not hold up in court.

    Just if anyone actually was wondering. (That’s the premise, I think, for Patterico’s astonishment.)

    Beldar (6921f4)

  7. “Listen: if it’s really true that blacks and Hispanics are more likely to be criminals and deadbeats — and note well, racists: I didn’t say it, the EEOC did — then maybe they should consider breaking fewer laws and paying their debts on time”

    The concern is about having a record. Which isn’t quite the same as breaking the law.

    bart (8bb588)

  8. Great, happyfeet, you hire the felons. I’ve got some great gang-bangers for you – oh, no worries they assure me that they are all reformed.

    SPQR (26be8b)

  9. There is a strong correlation between breaking the law and having a record, bart.

    SPQR (26be8b)

  10. There are reasons to take only limited comfort from the fact that the EEOC’s position is contrary to existing law:

    (1) If the EEOC takes this position in court and (as it should) loses, the Dems will have their “Lilly Ledbetter” excuse to re-write — and dramatically expand (by loosening) — federal anti-discrimination laws.

    (2) The very strong likelihood that the EEOC would lose in court if it asserts this position ultimately depends, right now, on not just the collective wisdom, but the collective good health of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. (The law on this is sufficiently settled — against the EEOC — that Justice Kennedy’s vote would be less of a worry than in many other settings.

    Beldar (6921f4)

  11. this doesn’t specify felonies

    happyfeet (19c1da)

  12. I have always found it interesting that many state agencies have hiring policies that prevent them from hiring ex-felons. The state is the one that releases these criminals because they have been rehabilitated….yet they won’t hire them. Either they are rehabilitated or they are not. If not, keep them there.

    Ken James (9d7ca5)

  13. it could be your kid or cousin or brother or sister or wife or husband or friend or friend’s brother what done sumpin stupid at 18 19

    and don’t think it couldn’t be cause it’s a fallen-ass world

    happyfeet (19c1da)

  14. Ken James (#12 — 8/11/2010 @ 7:59 pm): First, “rehabilitation” is at best a prediction, and one can make predictions in good faith — “We think this person will no longer engage in crime” — without also being obliged to engage in foolish risk-taking. It may be entirely reasonable for a parole board, for example, to make a favorable decision on a convicted bank robber, such that he’s released from prison and returned to society, hopefully even to employment. That doesn’t require that the government give him a job as a bank teller.

    Second, rehabilitation is only part of the system. Part of the purpose of the criminal law is to exact society’s retribution. Part of retribution, in turn, includes some deliberately lingering disabilities — e.g., in many (and I suspect it’s actually most) states, by statute, convicted felons can’t vote, and they may be eligible for many jobs and professions that require state licensure.

    Beldar (6921f4)

  15. “Somebody with an old conviction that has been rehabilitated doesn’t have any greater likelihood of committing a crime, so its irrational to use that against them,” Migdal said.

    Measuring levels of rehabilitation seems subjective and in some crimes, overestimating said levels could certainly jeopardize individuals. Rather than seeing this as something irrational to use against them, I see it as prudence and common sense.

    Dana (8ba2fb)

  16. Well, happyfeet, employers like non-fallen ass employees.

    And being sorted out because of stupidity is not unreasonable.

    SPQR (26be8b)

  17. How far are we going to take this insanity?

    My thoughts exactly. The people in the EEOC that are behind this idea need to have a mental staus exam, i.e., need to have their heads examined.

    MD in Philly (5a98ff)

  18. is recidivism correlated wif unemployment?

    for reals I don’t know

    happyfeet (19c1da)

  19. Happyfeet,

    Given the current employment market where if there is any job it is a buyer’s paradise why would someone even take the chance when there are plenty of people who want the job without that particular mark against them? Even in better times you are likely to have more applicants than jobs. And the risks might well be high enough that even if tax inducements were offered I could see many businesses passing up that particular opportunity.

    Soronel Haetir (8e703e)

  20. Here, by the way, is what I hope to be a more durable link to the Associated Press story that Patterico linked above from the Houston Chronicle. (The Chron frequently substitutes related stories at the same URL, or makes extensive revisions or corrections, without ever leaving tracks or acknowledging its changes, and it firewalls everything after a few weeks — both stupid and self-destructive policies).

    Beldar (6921f4)

  21. that was my point Mr. Haetir

    hmmm. unfortunately all the research I can find what explores the link between unemployment and recidivism looks to have been conducted by social scientist types

    happyfeet (19c1da)

  22. big zero can hire
    them for cabinet slots they
    would fit right in, right?

    ColonelHaiku (f2744f)

  23. Colonel want to know
    why a couple of murders
    or bank jobs big deal?

    ColonelHaiku (f2744f)

  24. Beldar: while the EEOC can take that position, they know, as do you and I disparate impact by itself is not proof of illegal discrimination. The employer has the opportunity to show that there are legitimate purposes to the employment standard being used that resulted in not enough of a particular group being hired.

    I think employers have a pretty good chance of establishing a legitimate reason for not wanting to hire people with criminal records. As for bad credit, I’m not as sure, maybe there is a correlation, maybe not. If there is, use it. If there isn’t, then employers shouldn’t be using it as a screening tool.

    steve (116925)

  25. Somehow I don’t think this is what Martin Luther King, Jr. had in mind.

    MD in Philly (5a98ff)

  26. steve — I agree, except I believe that under existing law, the non-discriminatory reason doesn’t even have to be rational (i.e., a good idea). It just has to be genuine. For example, regardless of whether there is or is not a correlation or even causation between credit record and satisfactory employment, it should be enough if the employer actually thinks that there is, even if he has nothing but an irrational hunch.

    If, instead, it’s a “mere pretext” and not genuine, then existing law permits — but doesn’t require — a factfinder to consider disparate impact as circumstantial evidence that illegal discriminatory intent (based, e.g., on race) was the reason. And the more irrational and weird the asserted basis for the decision, the more likely that a fact-finder will find it to be a mere pretext.

    We’ve seen in the past week just how dangerous it is to let federal judges begin deciding cases based on their value judgments about how “rational” a particular policy is or isn’t.

    Beldar (6921f4)

  27. Long ago John Campbell, in response to some government outrage in the 1960s or 1970s, talked about there coming a time when duty would be to help push the swing along, hurrying the day when it would overturn, rather than trying to retard it. I thought he was crazy, then.

    htom (412a17)

  28. Beldar,

    I thought bona fide occupational qualification had been interpreted pretty narrowly in this context. Which is why, for example, you see cities lowering their physical fitness standards for firefighters. The higher standards exceeded what was actually required to do the job and thus the fitness standard was not a BFOQ.

    Soronel Haetir (8e703e)

  29. “There is a strong correlation between breaking the law and having a record, bart.”

    How strong is it? I suppose the EEOC would be concerned with whether this correlation varies among the races.

    bart (017d51)

  30. BEST PRESIDENT EVER!

    Or at least #9 according to our esteemed academic historians.

    What a joke. FU Obama’s EEOC.

    ID (9284aa)

  31. it could be your kid or cousin or brother or sister or wife or husband or friend or friend’s brother what done sumpin stupid at 18 19

    And it could be a child predator hired to be a janitor in your kids school.

    But what’s the innocence of children when you can be a drug-high happy guy?

    red (427587)

  32. I would imagine an emphasis on advanced degrees would have a “disparate impact” on minorities, so wouldn’t an EEOC attack on this be the next logical step?

    beer 'n pretzels (3d1d61)

  33. Think of the badass corporate softball team you could put together with a bunch of humongous weight lifting ex-cons! Totally awesome.

    daleyrocks (940075)

  34. Comment by beer’n pretzels-

    Considering the state of the economy, the argument could be made that the EEOC has already been on this.

    MD in Philly (5a98ff)

  35. Another reason we are headed toward a Great Depression.

    Arizona Bob (e8af2b)

  36. “I would imagine an emphasis on advanced degrees would have a “disparate impact” on minorities, so wouldn’t an EEOC attack on this be the next logical step?”

    Not if the degree is actually relevant to the job.

    bart (017d51)

  37. “A blanket refusal to hire workers based on criminal records or credit problems can be illegal…”

    America: officially downgraded from a nation to an insane asylum.

    Dave Surls (23733f)

  38. Comment by bart: “Not if the degree is actually relevant to the job.”

    And a criminal record isn’t?

    It would seem that relevancy to the job is irrelevant to the EEOC.

    beer 'n pretzels (3d1d61)

  39. “and note well, racists: I didn’t say it, the EEOC did”

    Is it the racists that need to note that well? Are you worried about racists?

    Or is it those who would label you a racist for bringing it up, that need to note it was the EEOC who said it.

    breitbartfan77 (6bd10f)

  40. Perhaps the EEOC is just doing Charlie Rangel a solid.

    beer 'n pretzels (3d1d61)

  41. RACISTS !!!!!!!!!!!

    JD (02b872)

  42. They are obviously sexists too, JD!

    Is it the racists that need to note that well? Are you worried about racists?

    Or is it those who would label you a racist for bringing it up, that need to note it was the EEOC who said it.

    Comment by breitbartfan77 —

    I would say that you’re identifying the same group twice. Race baiters are racists. Al Sharpton, the Sherrods, Rev Wright, etc… these people aren’t one or the other.

    A business is about making money. The most helpful thing to know is that your employee pays their debts… that they can be trusted with money. It’s not morally as important as other factors… but trust with money is simply top priority.

    The idea that you could be breaking the law to base hiring decisions on this data is absolutely insane. Barry Goldwater was right about civil rights. And this is just a game for the left. ‘they’ all know what’s up. This racism shtick is just a trick for condemning and controlling as many marks as possible (in particular, minority voter blocks, told they are victims).

    The very fact that you’re checking the facts of a candidate’s character record, instead of their skin color, says it all about the racism here.

    The American People put a black man in the oval office. That’s not proof racism is gone, but clearly it’s time to stop assuming the worst. I wish the government was barred from tracking race in any fashion. I think Obama’s election is evidence enough that society would not fall apart from our massive racism.

    Dustin (b54cdc)

  43. Soronel Haetir (#28 — 8/11/2010 @ 8:49 pm): There is indeed still argument from time to time about what is or isn’t a “bona fide occupational qualification.”

    I confess that I could easily imagine someone like Judge Walker in CA saying “It’s not a bona fide qualification” for wait-staff to be only attractive young females who look good in tight t-shirts and very small, very tight orange shorts. But under the present state of the law, Hooters still hires using those criteria — with an amazingly disparate impact on would-be male wait-staff (which amount to zero percent; Hooters does have male employees in other capacities, of course). If Judge Walker ruled otherwise, he’d be wrong on the current state of the law, which requires deference to bona fide business plans, made without an illegal discriminatory intent, even if some may find them boorish or worse.

    Beldar (6921f4)

  44. “And a criminal record isn’t?”

    Doesn’t have to be. Despite someone’s claim of a “high correlation,” lots of people break the law and don’t have records for them. And if they DO have records I can see it really doesn’t matter that much. If years ago, your lawyer had a DUI, or if a manager at denny’s got picked up with some weed, or a 19 year old slept with a 16 year old, etc… I don’t really see it affecting their abilities to do their jobs. Not in a way that wouldn’t show on the job. Not as much as something as relevant as an actual degree.

    bart (c6305a)

  45. I know the lawyers here understand what I mean. Cheating a bill, screwing around with how you handle other people’s money… that’s basically the worst thing a bar applicant can do. It’s unforgivable. Sleeping with a client, heroin addiction, committing a violent crime… those are problems too, but Professional Responsibility is about trust with money.

    Your FICO isn’t the end all be all, but it’s a better way to screen out unacceptable applicants than ‘does he make our company look representative, racially?’.

    Dustin (b54cdc)

  46. These are some of the things that can disqualify you from being considered for employment by the United States Secret Service.

    Currently in default (failed to make payments) on student loan(s) insured by the U.S. Government

    Not paying federal/state taxes or not filing taxes

    Having child support in arrears

    Having any past due debt to include but not limited to repossessions, judgments, foreclosure or any debt that is not included through a bankruptcy agreement

    Being convicted of a felony

    Using illegal drugs during the last three years or while holding a security clearance or position of trust

    You know why the Secret Service has those rules? For the same reason private companies have those rules. They don’t want deadbeats and criminals working for them.

    Go figure.

    And, someone might want to point out to the EEOC that the federal government is doing the same thing that the EEOC morons in the federal government are complaining about.

    Dave Surls (23733f)

  47. Bart, how do you have a criminal record without breaking the law?

    reff (176333)

  48. bart – How do you feel about armed robbery, assault or rape?

    daleyrocks (940075)

  49. I think it’s up to the employer and the government should stay out of it once again. Mandating quotas for criminal or bad credit hires is the road the EEOC is headed down with this type of notice.

    If the Post Office wasn’t losing so much money, maybe they’d be hiring.

    daleyrocks (940075)

  50. The problem, as defined by the EEOC, is not the possession of a criminal record per se, but the way it affects minorities dis-proportionately, in their jaundiced view. In the recent financial/bank bailout bill, language was included that forces banks to hire more minorities. This is merely affirmative action on steroids. And is disgraceful.

    Gazzer (7ce6e6)

  51. OMG. This is what you get when an ultra-liberal, cuckoo-leftwinger, stupid leftwinger occupies the White House.

    America, you’re goddamned. And all the Americans who voted for the fool in the White House deserve to be goddamned.

    Mark (411533)

  52. I heard D. Allan Bromley give a talk when he was Bush 41’s Science Advisor and on Reagan’s science council. He was Chairman of the Department of Physics at Yale University during the Carter years, when he received a letter from the local (Boston) EEOC office asking him:

    1.) How many faculty members in the department are mentally handicapped or mentally disturbed?

    2.) What Affirmative Action plans does the department have to hire faculty members who are mentally handicapped or mentally disturbed?

    GaryC (b9136e)

  53. I run two commercial buildings. Seven tenants.
    They all voted for Obama. They all want rent discounts because business is bad.
    Nope, can’t do it, as they’ve also raised taxes and insurance.

    Jack (e383ed)

  54. “Bart, how do you have a criminal record without breaking the law?”

    I’m not really thinking about that situation.

    bart (d41d23)

  55. …not by the colour of their skin but by the content of their character…

    Just saying.

    scrubone (3acc0f)

  56. Sounds like they’re asking for a stronger version of this:
    http://www.buckettlaw.co.nz/SITE_Default/fyi/focus_on_law_library/Clean_Slate_Law.asp

    (Would you believe it if I told you the MP who pushed it through was a dope smokeing Rastafarian?)

    scrubone (3acc0f)

  57. Bart’s point (I think) is that a background check won’t raise a red flag against a criminal that has never been identified and/or caught. Therefore, I guess we might be in danger of discriminating against stupid criminals that allowed themselves to get caught & convicted.

    Icy Texan (ddb818)

  58. And speaking of the idiot, bart:
    if they DO have records I can see it really doesn’t matter that much. If years ago, your lawyer had a DUI, or if a manager at denny’s got picked up with some weed, or a 19 year old slept with a 16 year old, etc… I don’t really see it affecting their abilities to do their jobs. Not in a way that wouldn’t show on the job. Not as much as something as relevant as an actual degree

    — I work for an international fast-food restaurant chain. We run background checks on EVERY prospective employee. Employees make delivieries for us, on the clock; we do not hire drivers with a DUI on their record. We employ 16 & 17 year olds; we do not hire registered sex offenders. We entrust employees with cash handling responsibilities; we do not hire anyone with a felony theft conviction.

    Does ANY part of that seem unreasonable? or does it actually make sense?

    Icy Texan (ddb818)

  59. There actually is a valid complaint about using credit scores to make employment decisions: Credit scores are, theoretically, a measure of your ability and willingness to pay debts on time. Being unemployed lowers them dramatically, even if you haven’t been a deadbeat.

    Thus, ironically, employers who screen by credit score, not history, will end up turning down any applicant who isn’t currently employed. Bit of a bummer, that.

    Brett Bellmore (48aeab)

  60. If you’re unemployed, but NOT a deadbeat, your credit score lowers “dramatically”?

    Shullbit!!!

    Icy Texan (ddb818)

  61. Child molesters should consider claiming to be homosexual in order to force businesses to hire them.

    Equal opportunity is guaranteed, it’s just that some are more equal than others.

    Amphipolis (b120ce)

  62. Well, I think this kind of thing can be taken too far.

    But at the same time, there is a matter of relevance.

    If you are looking for a good receptionist who is not going to hand anyone’s money, I don’t see what a credit score has to do with anything.

    On the other hand, at my office they only looked back 5 years in criminal background. If they had looked further they might have learned that one of our administrative assistants had a history of theft and they might not have given her access to corporate credit cards. She ultimately ended up stealing from me, actually.

    So a rational balance can be struck. What do you think the chances are that Obama will strike it?

    This being, of course, the same party working hard to get felons the right to vote.

    Aaron Worthing (A.W.) (e7d72e)

  63. Icy Texan (#57 — 8/12/2010 @ 4:02 am): A few years ago I had the privilege of representing an elderly truck driver (and his family) in a personal injury case. My client was standing at the back of his properly parked truck at the entrance to the Port of Houston, opening the container doors to show that it was clean inside and ready to be returned and re-used. The driver of the truck stopped in-line behind my client’s got out of his truck without properly setting the brake, with his transmission in neutral. So propelled by gravity, his truck gradually accelerated into a short, fairly slow roll, and it pinned my client between the two trucks — sending him to the hospital with heart and skeletal problems, and effectively ending his career.

    Leaving your truck without setting the brake is negligence per se, but in investigating further, I found that the offending driver had two DWI convictions (both also with speeding citations) that pre-dated his hiring by the well-known and fairly large Houston corporation whose trucks he’d been hired to drive. In one prior conviction (based on his guilty plea), he was driving an 18-wheeler, a mostly-empty gasoline tanker that would have made a fine fuel-vapor bomb, along I-35 between San Antonio and Austin at over 90 mph and with over a 0.13% blood alcohol content.

    In due course, I was amazed to learn that the offending driver had disclosed his prior convictions when he was applying for employment with this company. Indeed, he admitted to them that the conviction had gotten him fired from his last truck driver job. But according to the head of security for his new company (in whose employ he’d injured my client), they decided to hire him anyway because he persuaded them that he’d reformed and that he deserved another chance.

    Federal regulations require that such employers keep logs detailing their compliance with other federal regulations that, among other things, required this company to check on prior driving convictions. Faced with how to enter into their logs their decision to “give the guy another chance” notwithstanding these convictions, they decided instead to forge log entries to conceal what their job-applicant had disclosed (which they’d independently confirmed through public records, all copies of which they’d removed from their employment files and shredded).

    The terms of the eventual settlement are confidential, but suffice it to say that by doing pretty much the opposite of what you describe your company doing, this company magnified its eventual civil liability, and its insurer’s payout (to be recaptured through future premium increases), by a very large margin.

    Beldar (6921f4)

  64. While I certainly agree that this kind of background checking can go too far, many employers have been forced into this data mining solely because the fear of lawsuits emanating from prior employers giving bad references has made that action unworkable any more. The most any prospective employer can hope to receive from a prior employer these days is the confirmation of employment, coupled with dates of employment. That’s about it.

    Dmac (d61c0d)

  65. Let’s see…I’m compelled to hire a felon, that employee then assaults a customer, I’m sued for negligent hiring by a member of the trial bar.

    What’s wrong here?

    Dick S (65b16d)

  66. “Disparate impact” is always a red flag.

    It is. Unfortunately the GOP fell all over itself in its eagerness to make “disparate impact” the law of the land back when the SCOTUS wanted to reject it.

    As for credit reports, sorry, but I don’t see how a persons credit report is any of an employers business. It has one and only one legitimate purpose – to be used by lenders in deciding whether to lend someone money, and how much interest to charge.

    Subotai (20be2e)

  67. If you’re unemployed, but NOT a deadbeat, your credit score lowers “dramatically”?

    People who are unemployed tend to have difficulty in paying bills. I’m not familiar with your class of people who are unemployed but always pay their bills on time. Perhaps you mean people like Paris Hilton?

    Subotai (20be2e)

  68. Beldar

    Can i ask a dumb question?

    The other driver was negligent, given. but was there evidence he was drunk? you didn’t mention anything on that.

    Aaron Worthing (A.W.) (e7d72e)

  69. Knowing government agencies, this brilliant idea from the EEOC probably came from one of its head bureaucrats in an effort to goose their annual performance report: “Implemented nationwide diversity reform survey” or some other BS bullet point.

    It’s yet another attempt at busybody nannystating that Codevilla talks about when he discusses how “experts” use these subjective rules and regulations in order to justify their existence.

    Another Chris (2d8013)

  70. I hate to sound like Glenn Beck, but this sure sounds all Cloward Piven to me.

    The prez and the wifey go on their vacations and on TV while the apparatchiks in the background grind away at changing every regulation possible to transform us into something we won’t much like when we finally see it.

    Patricia (358f54)

  71. Subotai…your point is relevant, if the person has been unemployed to a point where their ability to pay their debts is in question. As a potential employer I would want to know how long the person has been unemployed (level of skills, hireability, level of unemployment in their area) which would be a measure of subjective opinion as to their “desire” to work. I want employees that “want to work” for the level of pay I’m offering.

    For example, in this economy, if a person of nominal skills has stayed unemployed for a long period, it could easily be that they didn’t want to take a nominal job, and just stayed on unemployment for an extended period. If I was looking for someone with nominal skills, I would NOT want to hire this person.

    The opposite could also be true, relating to your point.

    reff (b996d9)

  72. Let’s force mortgage lenders to loan money to people that can’t afford to pay it back! What could go wrong?

    Let’s force companies to hire criminals! What can go wrong?

    Liberals are congenitally blind to unintended consequences.

    quasimodo (4af144)

  73. in this economy, if a person of nominal skills has stayed unemployed for a long period, it could easily be that they didn’t want to take a nominal job, and just stayed on unemployment for an extended period. If I was looking for someone with nominal skills, I would NOT want to hire this person.

    That’s great. It has nothing whatsoever to do with that persons credit rating though. The person who “didn’t want to take a nominal job, and just stayed on unemployment for an extended period” may or may not have a good credit rating.

    Subotai (20be2e)

  74. A.W.: On the occasion when my client was hurt, the co-defendant driver was ticketed after-the-fact for not setting his brake, to which he pleaded no-contest; but officers didn’t check him for intoxication on the scene. The driver denied having had anything to drink that day, and he had, after all, been truthful when he applied for employment by both his own and his employer’s account. But I caught him in several other obvious lies during his videotaped deposition, his demeanor was hostile and sullen, and his overall credibility was in serious doubt. His medical records showed moderately severe objective physical effects of chronic alcoholism, which he had acknowledged to his physicians (and for which he refused any treatment); but he denied under oath at his deposition that he was an alcoholic or a heavy drinker. Shortly after his video deposition, he stopped cooperating with his (b then former) employer and its insurer, and fled the jurisdiction — moved without a forwarding address — and the odds were very good that the court would have allowed me to comment on his absence at trial and his refusal to even show up to face a jury.

    Bottom line: I couldn’t prove that he had been drinking on the occasion when he hurt my client, but I think that’s an inference that a jury still might have drawn from the circumstantial evidence — but it didn’t necessarily need to. There was ample other evidence, in the form of opinion testimony from professional driving instructors and garden variety common-sense, that leaving a truck cab, even sober, without setting the parking brake while on even a gentle slope was gross negligence on his part.

    As for his employer (who I sought to hold liable both under respondeat superior and on an alternative theory of negligent and grossly negligent hiring and entrustment), the insurance company argued that the company only had grounds when it hired him to suspect the guy of drunkenness and speeding — not of failing to set parking brakes. That would have taken very big juevos to argue to a jury, and my counterargument was that the company was on notice when it hired him that the man was extremely dangerous in multiple respects; they were grossly negligent even though they didn’t predict, and perhaps couldn’t have predicted, the precise way in which he’d next violate all sorts of laws and rules in a way that could (and did) hurt someone. Suffice it to say that the insurer wasn’t eager to test their argument before a jury.

    Beldar (6921f4)

  75. beldar

    i would have been okay with a two sentence summary. i trust your honesty enough that i would presume you were being fair. but thanks for the clarification.

    Aaron Worthing (A.W.) (e7d72e)

  76. “I’m not familiar with your class of people who are unemployed but always pay their bills on time.”

    Subotai – I’m very familiar with this class of people. Let’s describe some of them as senior executives forced out of jobs through downsizing or other reasons with healthy exit packages. A combination of the exit package and savings allows them to pay their bills on time for an extended period of time, years in fact, while the economy makes it tough to find replacement jobs of equal stature. Companies looking at these executives for lower paying and lower stature jobs worry about hiring them feeling that they will bolt at the first opportunity for something like their old positions.

    daleyrocks (940075)

  77. When this question comes from my client, I ask them which case they would prefer to defend: the discrimination suit by the felon or the personal injury suit from the customer or tenant injured by the felon employee. They almost always choose to defend the discrimination suit.

    rochf (ae9c58)

  78. To clarify: (1) I couldn’t prove his intoxication through direct evidence (like a timely blood test). The evidence in favor of him having been drinking was circumstantial, but still had some force. (2) The insurer made the “we only knew he was a drunken speeder while driving commercial trucks on the job”-argument to me, during the early stages of settlement negotiations. My response to to say that I very much hoped they wouldn’t settle (which was true), so that we could test that theory, and that I valued that argument at zero for purposes of our settlement negotiations (which was also true).

    Re my comments last night about federal anti-discrimination laws: I should point out that I’m giving hipshot opinions without having done any research to refresh or expand my knowledge of this area of practice, and I am not a specialist in this area of the law — although I’ve had a good-sized handful of discrimination cases, sometimes representing employers, and occasionally representing employees. Anyone who looks, for example, at the tortured history of then-Circuit Judge Sotomayor’s Second Circuit ruling in the firefighters case, and (IIRC) the SCOTUS’ subsequent reversal on grounds that apparently the whole Second Circuit just missed, to see that predictions in this area are informed guesses at best.

    Beldar (6921f4)

  79. A.W.: You know that even commenting on Patterico’s blog, I can’t stay within a two-sentence limit! :-)

    Beldar (6921f4)

  80. Don’t look at the picture before deciding. Should centers specializing in child care run criminal checks?

    http://www.wral.com/news/news_briefs/story/8124457/

    Obama's neighbor (733d93)

  81. Beldar

    um yeah, similar problem.

    http://patterico.com/2010/08/09/when-provocation-suddenly-isnt-ok-greg-gutfeld-announces-plan-for-muslim-gay-bar-next-to-ground-zero-mosque/#comment-687295

    (look at about 8:23 this morning to see one of several novels i wrote there.)

    Aaron Worthing (A.W.) (e7d72e)

  82. Beldar: may I just say that comments like yours are one of the main reasons I frequent this blog. Many blog comment threads (and, sadly, a fair percentage of some threads here too when certain trolls get going) amount to little more than chest thumping and name calling. But I learn something when people like you contribute.

    And, considering what you probably charge per hour, I figure that I got a great deal from reading your several paragraphs!

    Danke!

    Gesundheit (cfa313)

  83. Beldar

    > A.W.: You know that even commenting on Patterico’s blog, I can’t stay within a two-sentence limit!

    > Comment by Beldar — 8/12/2010 @ 8:57 am

    Mmm, it has just occurred to me. that’s technically only one sentence, Beldar. :-)

    Aaron Worthing (A.W.) (e7d72e)

  84. Liberals are congenitally blind to unintended consequences.

    Comment by quasimodo — 8/12/2010 @ 8:15 am

    It’s getting to the point where it just doesn’t seem unintended anymore.

    Miguelito (7ba68a)

  85. Miguelito

    i have been watching glenn beck and i think that his entire premise is this: they are not just stupid. they are doing it on purpose.

    I am not sure i agree, but i can’t fault him for thinking that way.

    Aaron Worthing (A.W.) (e7d72e)

  86. A.W.: Your sharp eyes remind me of the story of the female guest, reportedly seated next to President Calvin Coolidge at a White House dinner, who told “Silent Cal” that she had bet her friends she could get him (Coolidge) to say more than three words. His pithy response was “You lose.”

    I’m also reminded of an occasion when I was a fact witness in a commercial case in federal district court in Los Angeles, one which arose out of the settlement I had negotiated and documented in an earlier lawsuit in Texas. This exchange from the transcript starts with a question from my client’s California counsel, with whom I was trying my very best to cooperate:

    Q. Now, in two sentences or less, can you explain what it was that [Parties A, B, C & D] were saying that brought [Party E] into the courthouse?

    THE COURT: No lawyer can stop at two sentences, Mr. [Smith].

    MR. SMITH: I’m trying, though.

    THE WITNESS: I’ll be as brief as I can, and I appreciate the court’s indulgence in not limiting me to two.

    I was thus the beneficiary of a federal judge’s sua sponte objection (something I gather this particular judge is somewhat known for), and indeed, there was much laughter in the courtroom (even from the jury, who’d already heard from three or four other lawyers). Nevertheless, I did indeed answer the question in two (longish) sentences. But when I started to offer a third sentence by way of further explanation, opposing counsel of course objected — “Narrative!” The objection was overruled, with a judicial frown whose significance was, unfortunately for him, completely lost on opposing counsel. After making and consistently losing on a string of perhaps two dozen increasingly frustrated objections, he ended up getting a severe chewing out from the judge (which he deserved) in the presence of the jury (which his client probably didn’t deserve).

    Gesundheit: You’re absolutely right that among them, Patterico’s commenters come up with lively and often informative comments, and there’s a lot of collective expertise to be found here. It all starts, though, with our host, to whom I’m grateful for the privilege of commenting here, and many of whose readers and commenters I likewise admire.

    Beldar (6921f4)

  87. Don’t forget that when the EEOC actually attempts to force companies to hire criminals and deadbeats, they’re not going to sue Microsoft. They’re going to go after weakly profitable small businesses that can’t afford to fight back.

    NickM (9d1bb3)

  88. Damn, Beldar, us ordinary attorneys only get a case like that once in a lifetime …

    As for the judge, Judge M. R.?

    SPQR (26be8b)

  89. SPQR, I’ve only had that one that was quite so amazing in those particular ways. And yes, those are the initials of the judge, about whom I’ve read quite a bit of commentary. This was my only first-hand experience with him, though, and I didn’t see the entire trial, only what happened while I was on the stand. But from my limited perspective as a witness in his court, I found him to be extremely courteous.

    Beldar (6921f4)

  90. (And to give further due credit, at least on this occasion, to the above-referenced trial judge, the Ninth Circuit, in an unpublished memorandum opinion that contains only a brief and incomplete summary of the underlying facts, mostly affirmed the trial court’s judgment for my former client. In the process the Ninth Circuit considered — and found “largely meritless,” and in any event harmless error — the other side’s appellate “arguments that the district judge was biased, made many erroneous evidentiary rulings, and gave defective jury instructions.”)

    Beldar (6921f4)

  91. Beldar, he’s notorious among Southern California litigators.

    One story that is probably apocryphal is that his nephew passed the California bar and got the honor of being sworn in by Judge M.R. in his courtroom at the beginning of the morning hearing docket. After the swearing-in, M.R. made a comment to his nephew that of course, as his nephew, M.R. would have to recuse himself from any case he appeared in. The story is that the nephew had 10 job offers before reaching the door out of the courtroom.

    SPQR (26be8b)

  92. Subotai – I’m very familiar with this class of people. Let’s describe some of them as senior executives forced out of jobs through downsizing or other reasons with healthy exit packages.

    You run in different circles than I do. :)

    Subotai (bd1b5d)

  93. cant disenfranchise
    or not employ criminal
    Big Zero voters

    http://www.thesmokinggun.com/file/election-08-mug-shots

    ColonelHaiku (2deed7)

  94. So if I hire an ex-con to help out on a remodel where the people are still in the home and he rapes and kills the daughter of my client… am I liable for civil damages?

    SteveG (f6fb69)

  95. Co. #92.

    Heads you lose, Tails you lose.
    Of course you’ll be liable.

    nbindo (8b5ad5)

  96. #92–yes, which is why you have to pick the suit you want to defend–discrimination or failure to protect the public.

    rochf (ae9c58)

  97. Who are we kidding? The American people will sit back and take this crap FOREVER. Check out Medved’s op-ed in today’s Journal – Barry gets re-elected on 65%+ Hispanic vote, 85%+ black vote, and 38% white vote. He knows where his bread is buttered and doesn’t care about the rest of us.

    FletchMacFletch (afcf4f)

  98. I don’t get why this is being viewed as some big bad conspiracy to destroy employer discretion, or ruin capitalism, or some other horrible thing.

    It’s really not much of a stretch to go from the anti-discrimination laws that have been on the books since the 1960s, and the long line of Supreme Court cases interpreting them, to this opinion. You may disagree with it, and I certainly have my reservations about it, but it’s hardly radical.

    JDU (3701c5)


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