Attorney Generals oppose EEOC’s criminal records guidance

EEOC’s recent guidance on criminal record checks and the hiring of those with previous criminal convictions. According to the state AGs:

• The EEOC’s enforcement actions and Enforcement Guidance are an unwarranted expansion of Title VII of the Civil Rights Act.
• The EEOC cannot use Title VII and the prevention of racial discrimination in employment as a stepping stone to create a new protected class for employment discrimination purposes, as that must be done by Congress. The new protected class being ex-offenders.
• The EEOC overreaches by preempting state and local laws which impose criminal background restrictions on certain positions of employment.
• There are practical consequences to employers for having to undertake more individualized assessments — cost and time. Coupled with the concern that individualized assessments are liable to increase discrimination suits if rejected applicants allege it was not conducted properly, which is important considering that it is a subjective assessment as spelled out in the Enforcement Guidance.

The attorneys general disagree that race discrimination is the EEOC’s actual concern and believe the agency simply seeks to expand Title VII protection to former criminals—something Congress has never required. “These lawsuits defy common sense,” West Virginia Attorney General Patrick Morrisey said, in reference to the recent lawsuits filed against Dollar General and BMW Manufacturing Co. LLC. “An employer may have any number of nondiscriminatory reasons for not wanting to hire people who cannot pass a criminal background check. Even if the use of criminal background checks in hiring might seem unfair to some, the law does not prohibit it. It is not the commission’s role to unilaterally expand the protections of Title VII under the pretext of preventing racial discrimination.” You can read a press release published by West Virginia AG’s Office here.]]>