As we reported in our July 15, 2013 blog post, the Equal Employment Opportunity Commission (EEOC) recently filed class action lawsuits against Dollar General and BMW  challenging those employers' use of criminal background checks.   Specifically, the EEOC alleged that Dollar General's and BMW's application of background check policies had a racially discriminatory impact on applicants and/or employees. 

Last week, the Attorney Generals of nine states (Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia) sent a letter to EEOC Chair Jacqueline Berrien and the EEOC Commissioners, describing the Dollar General and BMW lawsuits as "quintessential example[s] of gross federal overreach" and asking the EEOC to dismiss the lawsuits and rescind the EEOC's 2012 Guidance regarding criminal background checks.  The Attorney Generals' letter to the EEOC contends that:

  • the EEOC is improperly attempting to expand Title VII coverage to "former criminals", a group that Title VII is not intended to cover;
  • employers have legitimate, job-related concerns, consistent with business necessity, to apply criminal conviction policies that automatically disqualify from employment applicants or employees who have been convicted of serious crimes, noting that criminal backgrounds can be indicative of a lack of dependability, reliability, and/or trustworthiness;
  • the "individual analysis" of each conviction record proposed by the EEOC will unduly burden businesses with costs and regulations, and could arguably create more opportunity for racial discrimination than a non-discretionary policy that automatically disqualifies applicants who have criminal convictions; and
  • the EEOC is improperly intruding into states' rights and jeopardizing the enforcement of state laws that disqualify those with specific convictions from a variety of occupations (such as emergency dispatch personnel or pain management clinic employees) based on the convictions alone. 

A copy of the Attorney Generals' letter can be found here. 

Take-Aways 

The Attorney Generals' letter is a strongly-worded rebuke to the EEOC's recent lawsuit filings and Guidance, and may be particularly relevant to companies doing business in one or more of the nine states where the state Attorney General has openly opposed the EEOC's position — Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia.  We will continue to monitor this issue.  In the meantime, however, we are available to assist employers doing business in these states with creative strategies on how the letter can be used in defending against pending or future EEOC Charges or lawsuits premised on the company's use of criminal background history in making employment decisions.

Additionally, as previously noted, we recommend that all employers, irrespective of the states in which they do business, review their criminal background check policies with employment counsel.

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