EEOC responds to Attorneys General letter urging reconsideration of criminal background check guidance
September 30, 2013
a letter sent in July 2013 from the Attorneys General of nine states – Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia – that urged the EEOC to reconsider positions expressed in its ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’. Primarily, the state AGs claimed in the letter that:
- 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.
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