We’ll create the rules, but not play by them

We’ll create the rules, but not play by them: A classic oxymoronic example

 May 7, 2012, the Huffington Post published an article about Yolanda Quesada, a woman formerly employed by Wells Fargo (the nation’s largest bank based on market cap) for more than five years. Quesada was recently fired from the company for a shoplifting crime she committed in 1972!

Clearly, this sort of activity would be the perfect vehicle to filing a discrimination lawsuit against behavior that is obviously in violation of Title VII of the Civil Rights Act of 1964.  It has long been established by the Equal Employment Opportunity Commission (EEOC) that policies and practices that create a disparate impact on protected classes (Hispanics in Quesada’s case) are unlawful and subject to charges and penalties imposed by the federal government.

In addition, the EEOC recently announced new guidance on the issue of employers utilizing criminal and arrest records and how that utilization pertains to Title VII.  Within those guidelines, it is clearly outlined that blanket policies have no business necessity violating Title VII.  The EEOC also discusses a mechanism termed individualized assessment, which is a process that essentially allows employers to take an individual look at a specific set of circumstances to determine whether an exception should be made given the relevance to business necessity.  If you were unable to follow that, here is what all of this means in a nutshell:

Companies simply cannot take adverse action, like firing a good, established employee, because of a criminal record that he or she obtained more than four decades ago.  The company would need to establish that the crime that occurred directly correlates to the position that the person currently holds. The company would also need to prove that the criminal record creates a viable, statistical and somewhat empirical threat to the business.  A shoplifting charge from 1972 is not going to cut it.  Without a doubt, this situation would go on to graduate into a lawsuit.

However, Wells Fargo is an insured depository institution, which means it is governed and bound by federal oversight such as law 18 USC 1033 and specific statues outlined by the Federal Deposit Insurance Corporation (FDIC).  18 USC 1033 specifically states:

(A)  Any individual who has been convicted of any criminal felony involving dishonesty or a breach of trust, or who has been convicted of an offense under this section, and who willfully engages in the business of insurance whose activities affect interstate commerce or participates in such business, shall be fined as provided in this title or imprisoned not more than 5 years, or both.

(B) Any individual who is engaged in the business of insurance whose activities   affect interstate commerce and who willfully permits the participation described in subparagraph (A) shall be fined as provided in this title or imprisoned not more than 5 years, or both. (2) A person described in paragraph (1)(A) may engage in the business of insurance or participate in such business if such person has the written consent of any insurance regulatory official authorized to regulate the insurer, which consent specifically refers to this subsection.

Because shoplifting is a crime that directly relates to dishonesty (stealing) and a breach of trust, Wells Fargo was left with no alternative other than to let Quesada go, even though the crime she committed occurred more than 40 years ago.

The new guidance provided by the EEOC unambiguously states, “Compliance with federal laws and/or regulations is a defense to a charge of discrimination.”  The commission goes on to say that it will continue to work with federal departments to create consistency and to principally adjust federal policy so that it conforms to normal Title VII compliance.

This situation clearly isn’t fair for a number of reasons. First, Yolanda Quesada has obviously gotten hosed, which is detrimental to her and her well-being.  However, Wells Fargo has also received the shaft because the company is out a wonderful employee who it had entrusted for five years.  Why it has taken this long to figure this out is baffling. Nevertheless, it is definitely a losing situation for all parties involved.  Just another example of members of the federal government creating rules for everyone to follow, but rules they seem to choose to ignore themselves.

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