Sheetz hit with federal discrimination lawsuit

[Judas Maccabeus]

You are both right and wrong here. You are correct in that the government did a disparate impact analysis. That is standard. Where you are incorrect is in the assertion that disparate impacts are by definition discriminatory. That is untrue. All an employer has to do is demonstrate that the standard which caused the disparate impact is necessary for the job for it to not be discriminatory.

For example, airline pilots must pass vision tests in order to fly commercial jetliners. Pilots must have 20/20 vision with our without correction. This standard clearly has a disparate impact on blind candidates for the job, and the blind are a protected class. Does that mean the airlines are illegally discriminating against the blind in their hiring practices? No. Because the airlines can easily show that 20/20 vision is necessary for piloting a commercial jetliner.

Another example. A state might impose a 40 mph minimum speed capacity on all vehicles that use the public roadways. They might do this for any number of legitimate reasons such as not wanting slow moving vehicles to block traffic. This standard would clearly have a disparate impact on the Amish since there are no horse-drawn Amish buggies that can cruise at 40 mph. Effectively the Amish would be banned from using public roads. Whether or not such a law would be discriminatory depends on whether the state can show that such a law is necessary and outweighs the rights of the Amish to also use the roadways.

In this case with Sheetz. The company merely needs to demonstrate that their particular use of criminal background checks as a computerized screening tool in the initial part of the job application process serves a necessary purpose that outweighs the rights of minority applicants to be considered for the job. If Sheetz can demonstrate that their method of candidate screening serves a necessary and legitimate purpose (as opposed to doing the background screening later in the hiring process after the candidate has had a chance to present their case) then they will win.

The feds will try to assert that disparate impact means that there must be discrimination or racial animus if the results adversely impacts a protected population. After all, all white people are racist, by definition. As I said, I would have been fired had I not retired, because I would have stood up and walked out of implicit bias training.

I think they've moved on from arguing the racial animus bit - the latest and greatest theory is that even if the employer has no discriminatory intent or racial animus, if a policy results in a disproportionately negative impact on a protected class then it is discriminatory.

One of the reasons for moving to algorithmic hiring systems was to help to prevent conscious or unconscious racial bias from impacting the hiring process. So now, lets force a human review of everything so that we can make this about racial bias in human decision making again....

That is the whole point of disparate impact. You do not have to prove discrimination, just show the outcome in “inequitable.”

[mike]

The feds will try to assert that disparate impact means that there must be discrimination or racial animus if the results adversely impacts a protected population. After all, all white people are racist, by definition. As I said, I would have been fired had I not retired, because I would have stood up and walked out of implicit bias training.

I think they've moved on from arguing the racial animus bit - the latest and greatest theory is that even if the employer has no discriminatory intent or racial animus, if a policy results in a disproportionately negative impact on a protected class then it is discriminatory.

One of the reasons for moving to algorithmic hiring systems was to help to prevent conscious or unconscious racial bias from impacting the hiring process. So now, lets force a human review of everything so that we can make this about racial bias in human decision making again....

That is the whole point of disparate impact. You do not have to prove discrimination, just show the outcome in “inequitable.”

That's what bothers me. In my view, the issues with the higher rates of criminal background in minority communities is a larger societal issue that is not the fault of an employer. Forcing companies to change how they treat background checks in the hiring process is not going to solve that problem.

[Josh]

Put another way, a poor Black kid in the inner city may live exactly the same life as a middle class white kid in the suburbs but will have many many more interactions with the police and criminal justice system growing up simply due to his race and socioeconomic status. And, is therefore, much more likely to have some sort of police record for living the same exact life. This has been extensively documented across the country.

Is your hypothetical poor “Black” kid (I note that you capitalise “Black”, but not “white”, which is interesting) somehow forced to commit crimes?

Why isn’t an option to just not commit crimes? Lots of white people have interactions with police. An “interaction” does not automatically mean a criminal record.

[Ken]

Put another way, a poor Black kid in the inner city may live exactly the same life as a middle class white kid in the suburbs but will have many many more interactions with the police and criminal justice system growing up simply due to his race and socioeconomic status. And, is therefore, much more likely to have some sort of police record for living the same exact life. This has been extensively documented across the country.

Why isn’t an option to just not commit crimes? Lots of white people have interactions with police. An “interaction” does not automatically mean a criminal record.

Yes, it is extremely well documented that poor Black kids are frequently subject to criminalization for activities that are not criminalized for kids whose are White and middle class. Everything from trivial issues of school discipline to things like walking on the street, driving with a broken taillight, etc. And it isn't just boys. Same thing happens to Black girls and to a lesser extend Hispanic girls.

When the criminal justice system doesn't treat people equally, and ours does not. The effects reverberate throughout society. This is just one example.

[Ken]

The feds will try to assert that disparate impact means that there must be discrimination or racial animus if the results adversely impacts a protected population. After all, all white people are racist, by definition. As I said, I would have been fired had I not retired, because I would have stood up and walked out of implicit bias training.

I think they've moved on from arguing the racial animus bit - the latest and greatest theory is that even if the employer has no discriminatory intent or racial animus, if a policy results in a disproportionately negative impact on a protected class then it is discriminatory.

One of the reasons for moving to algorithmic hiring systems was to help to prevent conscious or unconscious racial bias from impacting the hiring process. So now, lets force a human review of everything so that we can make this about racial bias in human decision making again....

That is the whole point of disparate impact. You do not have to prove discrimination, just show the outcome in “inequitable.”

And what is wrong with that? Take my hypothetical example of a minimum speed regulation that inadvertently excludes the Amish from our public roads. There was no intent to discriminate against the Amish. In fact, no one was even thinking about them when the regulation was written. Yet such a regulation would clearly have a disparate impact on the Amish. Is that sort of thing perfectly fine in your mind as long as there was no discriminatory intent?

[Ken]

I think they've moved on from arguing the racial animus bit - the latest and greatest theory is that even if the employer has no discriminatory intent or racial animus, if a policy results in a disproportionately negative impact on a protected class then it is discriminatory.

One of the reasons for moving to algorithmic hiring systems was to help to prevent conscious or unconscious racial bias from impacting the hiring process. So now, lets force a human review of everything so that we can make this about racial bias in human decision making again....

That is the whole point of disparate impact. You do not have to prove discrimination, just show the outcome in “inequitable.”

That's what bothers me. In my view, the issues with the higher rates of criminal background in minority communities is a larger societal issue that is not the fault of an employer. Forcing companies to change how they treat background checks in the hiring process is not going to solve that problem.

Every deep seated societal problem is complex. That's what makes them deep seated. And there is usually no magic bullet solution available to fix things. Sometimes all you can do is stop making things worse and try to take incremental steps in the other direction.

[cooper]

What happens if the government wins this case? I have no idea. Perhaps a fine that could be appealed. More likely my guess is that they settle and enter into a consent decree in which Sheetz agrees to change its hiring practices. And that will become a marker for other firms to comply with.

The fact Sheetz had eight years to work this out and didn't come to an agreement with EEOC makes me think they are going to run it through the courts. Sheetz is a private company, so they have different incentives than a public company. I'm not familiar with employment law, but this seems like a weak case. The idea that disparate outcomes alone are evidence of discrimination seems like a problematic precedent.

[Josh]

Yes, it is extremely well documented that poor Black kids are frequently subject to criminalization for activities that are not criminalized for kids whose are White and middle class. Everything from trivial issues of school discipline to things like walking on the street, driving with a broken taillight, etc. And it isn't just boys. Same thing happens to Black girls and to a lesser extend Hispanic girls.

When the criminal justice system doesn't treat people equally, and ours does not. The effects reverberate throughout society. This is just one example.

Can you explain “criminalisation” of a “broken taillight”? I’ve been pulled over for this before. Of course, I wasn’t driving in a suspended licence, transporting marijuana, illegally concealing a weapon, was wearing my seatbelt, and didn’t have illegal 5% tint on my car.

“Walking in the street” is also dangerous and illegal - there are sidewalks. There is no reason young people can’t walk on the sidewalk. If ordered to by a police officer, young people have two choices:

- Get off the street and onto the sidewalk
- Be defiant, refuse to comply with a lawful order, and then be subject to arrest and a search of their person for dangerous items, and then be subject to criminal charges for weapons or drugs found on them.

None of this has anything to do with race. I believe black people are just as capable as white people of not breaking the law, and when caught with a minor infraction, behaving themselves.

[Josh]

And what is wrong with that? Take my hypothetical example of a minimum speed regulation that inadvertently excludes the Amish from our public roads. There was no intent to discriminate against the Amish. In fact, no one was even thinking about them when the regulation was written. Yet such a regulation would clearly have a disparate impact on the Amish. Is that sort of thing perfectly fine in your mind as long as there was no discriminatory intent?

Yes, I am. Route 30, 83, 250, and 77 all prohibit horse drawn vehicles, tractors, or e-bikes on them. They typically have an unposted speed minimum of 35 or 40. Amish people are effectively excluded from these roads; the vehicles they use are expressly prohibited.

[Ken]

And what is wrong with that? Take my hypothetical example of a minimum speed regulation that inadvertently excludes the Amish from our public roads. There was no intent to discriminate against the Amish. In fact, no one was even thinking about them when the regulation was written. Yet such a regulation would clearly have a disparate impact on the Amish. Is that sort of thing perfectly fine in your mind as long as there was no discriminatory intent?

Yes, I am. Route 30, 83, 250, and 77 all prohibit horse drawn vehicles, tractors, or e-bikes on them. They typically have an unposted speed minimum of 35 or 40. Amish people are effectively excluded from these roads; the vehicles they use are expressly prohibited.

Yes and the state highway department has probably determined that they have legitimate and important reasons for imposing regulations on those specific roads. But if they applied those same regulations universally to every road in Ohio they would not, correct? In other words:

• disparate impacts do not need to have discriminatory intent for them to be discriminatory
• disparate impacts are not necessarily wrong or discriminatory if they serve a specific legitimate purpose (like road safety on busy multi-lane highways)
• In order for actions that cause disparate impacts to be permissible they need to serve a specific purpose that outweighs their harm

Use of background checks as a hiring screen is no different. It is permissible if it serves a job related purpose and relates to the position at hand. But companies like Sheetz should be more considered in how the use those tools so that a kid who might have been arrested for having a cell phone at school or jaywalking isn't permanently excluded from gainful employment for life. And yes, those things happen.

Think it through. From a strictly societal perspective, if you exclude every person who has any sort of criminal record no matter how minor from all gainful employment in the US then what happens? What do you expect them to do? Turn to an actual life of crime? Is that what we want as a society?