State Attorneys General Weigh in Against EEOC Restrictions on Background Checks

August 02, 2013

Nine state attorney generals have sent a letter to the Equal Employment Opportunity Commission objecting to recent federal lawsuits and guidelines restricting employers' use of criminal back ground checks as “a quintessential example of gross federal overreach.”  EEOC has taken the position that, while Title VII does not directly prohibit employers from using criminal records in hiring decisions, a violation may occur based on how they use that information.  An EEOC spokesperson responded to the letter saying “a previous criminal record should not prevent all future employment.”  The letter was signed by the Republican attorneys general of West Virginia, Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, and Utah, and focused on the agency's lawsuits earlier this year against Dollar General and BMW Manufacturing Co.  The letter states:

Although the policy guidance and your recently filed cases are premised on disparate racial impact, race discrimination cannot plausibly be your agency's actual concern. As noted, there are numerous nondiscriminatory reasons for wanting to screen out former criminals in the hiring process. . . . If Congress wishes to protect former criminals from employment discrimination, it can amend the law.

The letter also took issue with the fact that EEOC's enforcement guidance "purports to supersede" state and local hiring laws that “impose bright-line criminal background restrictions that are not narrowly tailored."