The Equal Employment Opportunity Commission (“EEOC”) is under fire from the attorneys general in nine states because of its controversial stance on the use of criminal background checks in the hiring process. Last year, the EEOC issued new enforcement guidance prohibiting employers from having blanket policies against hiring applicants with a criminal background. The rationale is that certain racial and ethnic minorities are disproportionately more likely to have been convicted of a crime, so a blanket policy against hiring ex-convicts is discrimination on the basis of race or national origin. While the gist of the enforcement guidance is not new, the EEOC’s zeal to enforce it is. When the EEOC filed lawsuits against BMW and Dollar General on this basis, the attorneys general of West Virginia, Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah stepped in.
The attorneys general argue the EEOC’s enforcement guidance and lawsuits against BMW and Dollar General overstep the agency’s authority. The attorneys general argue the EEOC’s position effectively adds criminal background to the list of protected categories, which is not within the agency’s authority.
In a very pro-business move, the attorneys general argue the EEOC is making unfair demands of businesses without any proof that these businesses are motivated to discriminate based on race or national origin. As a result employers must spend time making individualized assessments about applicants they are unlikely to hire because of their criminal history. Employers must pit the risks of hiring ex-convicts against the fear the EEOC will claim they are discriminating based on race or national origin, even if they treat all ex-convicts the same regardless of race or national origin. Finally, the EEOC guidance claims to preempt state laws barring certain ex-convicts from employment in certain occupations or work settings. The attorneys general argue this is an egregious intrusion into state sovereignty.
The EEOC’s policies on criminal background checks and credit checks are also subject to scrutiny in the courts. Recently, a federal court in Maryland granted summary judgment against the EEOC in a challenge to an employer’s criminal background check and credit check policies. The crux of the decision was the EEOC’s failure to support its position with relevant and reliable statistical data showing the alleged disparate impact of the policies. While the court noted several concerns with the EEOC’s approach to these issues in general, the decision did not order an outright prohibition. The court recognized that if the EEOC used statistical evidence showing an unfair impact on legally protected groups, i.e., based on their race or national origins, the agency’s position might be upheld.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.
