Responding to a letter from nine state attorneys general that called the U.S. Equal Employment Commission’s recent lawsuits over criminal background checks and enforcement guidance misguided, EEOC Chair Jacqueline Berrien has said the attorneys’ main concern appears to be premised on a misunderstanding. The state attorneys’ letter speculated that the agency’s true aim may not be correcting illegal racial disparities but extending the protection of federal discrimination laws to protect former criminals, but Berrien’s letter assured them that the EEOC has never suggested that it is illegal for employers to use criminal background checks. And when it came to the attorneys’ criticism of the agency’s focus in its recent guidance on employers’ use of individualized assessments when considering a job applicant’s background, Berrien said the state officials simply misunderstood the agency’s position. “Your primary objection to the substance of the enforcement guidance relates to its discussion of individualized assessments,” Berrien’s letter said. “But this objection appears to be premised on a misunderstanding: that the guidance urges employers ‘to use individualized assessments rather than bright-line screens.’ This is incorrect.
