State Attorneys General Challenge EEOC Guidance on Background Checks

Over the past two years, the Equal Employment Opportunity Commission has taken an increasingly narrow view of when employers can use criminal background information to exclude a job applicant.  In April 2012, the EEOC  issued  Enforcement Guidance No. 915.002, which  suggests that employers must  conduct an individualized assessment of each job applicant’s criminal background and show “a demonstrably tight nexus” between the criminal conduct at issue and the position in question.  This assessment would require the employer to consider, among other things, the facts and circumstances surrounding the offense, the age of the person at the time of the illegal behavior, and what efforts at rehabilitation have been made.  Even if employers were to undertake such an analysis, however, it is far from clear how to balance the various interests in play.

In June 2013, the EEOC took the next step towards enforcing the agency’s view of Title VII by filing two lawsuits.  These lawsuits, against Dollar General (EEOC v. Dolgencorp LLC d/b/a Dollar Gen., N.D. Ill., No. 1:13-cv-04307) and BMW Manufacturing Corporation (EEOC v. BMW Mfg. Co., D.S.C., No. 7:13-cv-01583), allege that the employers illegally used criminal background information in the hiring process.  Both companies use bright-line rules that exclude individuals with certain types of criminal convictions (not all criminal convictions) from employment.  These bright-line rules, the EEOC argues, disproportionately screen out African-Americans in violation of Title VII.

Last week, in a letter dated July 24, the Attorneys General for nine states challenged the position taken by the EEOC in these recent lawsuits.  The Attorneys General wrote, “We are troubled that [the EEOC’s] real true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII to former criminals.”  They commented that no matter the perceived unfairness with judging a person solely by his or her past criminal behavior, it is not the EEOC’s role to expand the scope of Title VII under the pretext of preventing racial discrimination.  They also are concerned with the EEOC’s alleged preemption of state and local hiring laws, many of which contain bright line rules prohibiting the employment of persons convicted of certain crimes in safety sensitive  occupations.

The appropriate use of criminal background checks in the hiring process is an issue that has been bubbling below the surface for several years now.  With the EEOC’s current lawsuits, and the clear disagreement now lodged by the some states, we may be getting ready to move this one to the front burner.


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