Well known Chicago-school law professor Richard Epstein has taken on the employment discrimination laws and the EEOC in a newly published column by conservative think-tank the Hoover Institution.  “Antidiscrimination laws can wreak havoc on job creation,” says Epstein. “The Equal Opportunity Employment Commission, a federal agency tasked with enforcing antidiscrimination laws, has demonstrated just how destructive such laws can be. “


Epstein targets as “folly” the EEOC’s “Enforcement Guidance” of April 2012, dealing with criminal arrest and background checks.  He states that this “newest confection out of the EEOC orders most employers to do exactly what the law forbids. It introduces an explicit classification into the hiring equation by imposing a higher standard for refusing to hire minority workers than for others. The Enforcement Guidance also applies even when it is clear that the employer’s refusal to hire certain workers is not because of race but because of the evident risk that a criminal record could present to the employer, its other employees, and its customers.”



Excoriating the EEOC, Epstein says that “[n]othing is more dangerous in public or private affairs than power without responsibility. It is therefore a fair question to ask how the EEOC guidance took its final shape.”



After a long exegesis of the law and its enforcement, Epstein concludes that both employers and employees suffer because “by raising transaction costs, the EEOC will continue on its mindless job-killing path.  Once again, the EEOC seems utterly oblivious to the harm that it causes to the groups that it most wants to help—and indeed to everyone else.”