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The EEOC and Criminal Records: What’s the Latest? (Part Two)
Derek Hinton - DOTJobHistory.com

Last month, I wrote about EEOC guidance dealing with the use of criminal records in pre-employment screening. To review, in April of last year, new guidance was issued, several high profile suits were filed against BMW and Dollar General, prompting nine Attorneys General s to write the EEOC in protest of the new guidance.

Will the Letter from the Attorneys Generals Change the Guidance?

Regardless of your political persuasion, this is an issue that is ripe for consensus. No one wants a permanent class of unemployable citizens due to criminal offenses that have no bearing on their ability to do a good job. There’s a job for everybody, but not every job is for everybody. And so, there’s always a chance that the mostly “blue” EEOC and the mostly “red” state’s objection could result in both sides sitting together and coming up with smart, workable guidance. (Yawn).

The EEOC did respond to the Attorneys Generals letter. In essence, their response was the same as a cop directing traffic after a fender-bender “nothing to see here folks, move along, nothing to see.” Their actual words were, in part, “Accordingly, the EEOC's Guidance is simply reciting and applying the text of Title VII, which sets forth the principle that federal law preempts contradictory state or local law.” http://www.eeoc.gov/eeoc/newsroom/wysk/criminal_background_checks.cfm

State of Texas Files Suit Against EEOC.

After the response to the states, Texas took action. In November of 2013, the state of Texas filed suit against the EEOC, saying, in part “The EEOC’s Enforcement Guidance has a direct and immediate impact on the day-to-day business of the State, its agencies, and its political subdivisions. EEOC has propounded a substantive interpretation of Title VII that purports to preempt the State’s sovereign power to enact and abide by state-law hiring practices. The State either must violate state and local laws that prohibit the “individualized assessments” that EEOC requires and consider convicted felons for hire as Troopers, jailers, and school teachers—or the State must ignore the EEOC’s enforcement guidance and risk an EEOC enforcement action like the ones the Commission launched against Peoplemark and Freeman.

On January 27, 2014, the EEOC filed a motion to dismiss the Texas suit. Time will tell the outcome.

But has the EEOC made their point and ready to go to other issues?

It doesn’t appear so. The EEOC has a Strategic Enforcement Plan for FY 2013 – 2016. Their number one priority? “Based on intensive efforts by a staff work group and Commissioners, and extensive public input, the Commission adopts the following national priorities:

1. Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

As Texas wrote in their suit against the EEOC “Indeed, EEOC has publicly adopted a strategy of prosecuting high-profile cases against major employers to attract attention from the media. See EEOC, Performance and Accountability Report (2011) (“[T]he quantity of systemic lawsuits and their representation on the total docket is expected to continue to steadily increase.”).

If you are screening many applicants and using criminal records in the process, you should have a written policy and procedure and methodology to ensure you evaluate the job, the nature, gravity and timing of any offenses. You should evaluate whether any offenses are job related/consistent with business necessity to consider and after evaluating, you should perform an individualized assessment.

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