The Equal Employment Opportunity Commission's policy on criminal background checks is under fire.

In July, nine Republican state attorneys general asked the federal agency to reconsider its policy on criminal background checks and dismiss two lawsuits the EEOC filed against Spartanburg, S.C.-based BMW Manufacturing Co. L.L.C. and Goodlettsville, Tenn.-based Dolgencorp L.L.C., a Dollar General Corp. subsidiary.

The suits, which allege the companies violated Title VII of the Civil Rights Act of 1964, are pending in federal court.

The lawsuits and the EEOC's application of the law “are misguided and a quintessential example of federal overreach,” the attorneys general said in the letter.

This month, in sometimes scathing language, a federal judge in Maryland dismissed an EEOC lawsuit that had accused Freeman Decorating Services Inc. of using criminal background check information in such a way that it had a disparate effect on minorities. In particular, U.S. District Court Judge Roger W. Titus criticized data used to support the EEOC's case.

There is “such a plethora of errors and analytical fallacies” underlying one statistics expert's conclusions that it renders them “completely unreliable and insufficient to support a finding of disparate impact,” Judge Titus ruled.

Tanisha Wilburn, a Washington-based senior attorney adviser in the EEOC's office of legal counsel, said the agency is considering the letter from the attorneys general and its options with respect to the ruling in Equal Employment Opportunity Commission v. Freeman (Freeman Decorating Services Inc.).

Observers, however, expect the EEOC to appeal Judge Titus' Aug. 9 ruling.

In the meantime, observers do not expect a significant change in the EEOC's policy.

If anything, the letter from the attorneys general and the Maryland judge's ruling “will cause (the EEOC) to become more focused on this issue,” said Pamela Q. Devata, a partner with Seyfarth Shaw L.L.P. in Chicago.

Instead, the EEOC may calibrate its focus in future litigation and “look to see if they can't find a case where they've got a stronger set of facts and a concrete example of how an employer's polices have affected a specific individual,” said Peter J. Gillespie, of counsel at Fisher & Phillips L.L.C. in Chicago.