Nine state attorney generals recently sent a joint letter to the EEOC claiming that the lawsuits and application of the law regarding criminal background checks is “misguided and a quintessential example of gross federal overreach.” The letter blasts the EEOC on its position that “employers’ use of bright-line criminal background checks in the hiring process violates Title VII…” The EEOC believes that a neutral policy of using prior criminal convictions as a job screen has a “disparate impact” on minorities and it crystallized its position in guidance it issued in April 2012. The EEOC’s position on background checks has been roundly criticized by courts, scholars, and employers alike. Undeterred, the EEOC continues to file federal lawsuits accusing employers who consider criminal histories in hiring of violating Title VII. The letter urges the EEOC to “reconsider [their] position, rescind the EEOC Enforcement Guidance… and dismiss the [pending lawsuits].” This letter may be the most stinging rebuke to the EEOC on the subject to date. Employers insisting on clarity and predictability with regard to their criminal background check policies may have to await the outcome of pending lawsuits; in the interim, they can take heart that they have allies in state governments.
