June 13, 2014
This week, witnesses at a House hearing called on the Equal Employment Opportunity Commission to withdraw its 2012 guidance on criminal background checks with committee members criticizing the agency for pursuing meritless discrimination suits. House Workforce Protections Subcommittee Chairman Tim Walberg (R-MI) said the agency's guidance is "flawed" and "because of the EEOC's overreach, there are now policies in place making it harder for employers to do what is right. Some employers will simply avoid the bureaucratic hassle of conducting background checks or the risk of being second-guessed by the federal government, which means more Americans might be put in harm's way." Todd McCracken, President of the National Small Business Association said that employers can still be held liable for negligent hiring claims if they comply with the EEOC's guidance, and because there is no safe harbor in the EEOC's guidance protecting employers that follow local or state hiring laws, employers face potential Title VII liability exposure for following state laws. Addressing the EEOC's enforcement activities generally, Rep. Walberg also noted that "we have an unaccountable [EEOC] General Counsel pursuing cases of systemic discrimination without any allegations of wrongdoing." Over the past two years, the courts have ordered the EEOC to pay $5.6 million in attorneys' fees for pursuing suits the courts decided were not reasonably grounded in law or in fact. According to Seyfarth Shaw attorney Camille Olson, "the courts have ruled the EEOC failed to establish even a prima facie case in all three criminal and credit background check cases it has litigated."