Nine state attorney generals sent a letter to the Equal Employment Opportunity Commission (EEOC) last week opposing the EEOC’s criminal records Enforcement Guidance “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” issued in April, 2012, and the EEOC’s recent enforcement actions under the guidance against BMW Manufacturing and Dollar General. On June 11, 2013, EEOC filed two separate lawsuits against Dollar General and BMW Manufacturing accusing them of improper use of criminal background checks for employment screening purposes (read more here). The state attorney generals urge the EEOC to rescind the Enforcement Guidance and dismiss the complaints against Dollar General and BMW Manufacturing regarding their use of criminal background checks in hiring. In the letter, the state attorney generals claim:
- The EEOC’s Enforcement Guidance and enforcement actions are an unwarranted expansion of Title VII of the Civil Rights Act.
- The EEOC cannot expand the protections of Title VII under the pretext of preventing racial discrimination. Only Congress has a right to create a new protected class for employment discrimination purposes.
- Many state and local laws impose criminal background restrictions on certain positions of employment, therefore the EEOC overreaches by preempting these laws.
- The EEOC’s enforcement actions are a “burden on businesses”. Cost and time come as the consequences to employers since they would have to undertake more individualized assessments. Moreover, individualized assessments may lead to more discrimination suits if rejected applicants claim these assessments were not conducted properly.