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ARC: HOW COMPANIES CAN PROPERLY CONDUCT CRIMINAL BACKGROUND CHECKS ON WORKERS AND POTENTIAL HIRES

Change criminal background check policy: Attorneys general to EEOC

EEOC Background Check Policy

Led by West Virginia, nine state attorneys general have asked the U.S. Equal Employment Opportunity Commission to reconsider its policy on criminal background checks and dismiss two lawsuits related to the issue.

In June, the EEOC sued Spartanburg, S.C.-based BMW Manufacturing Co. L.L.C. and Goodlettsville, Tenn.-based Dolgencorp L.L.C., a Dollar General Corp. subsidiary, for their use of criminal background checks.

A letter to the five EEOC members dated Wednesday states, “We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach. Our states urge you to reconsider your position and these lawsuits.”

In addition to West Virginia Attorney General Patrick Morrisey, the attorneys general of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah, all Republicans, signed the letter.

“Importantly, neither lawsuit alleges overt racial discrimination or discriminatory intent on the part of the companies,” the attorneys general wrote. “There is no allegation, for example, that the companies are employing these policies based on racial stereotypes of criminality. Nor is there any contention that the companies have treated dissimilarly individuals of different races who have similar criminal records. To the contrary, every individual who fails a criminal background check is equally refused employment.”

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While the litigation carries out April 2012 guidance from the EEOC, the guidance and the litigation “incorrectly apply the law,” the attorneys general wrote. “We are troubled that your agency's true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals.”

The state officials said the practical consequences are a concern.

“Forcing employers to undertake more individualized assessments will add significant costs,” they said. “In addition, more individualized assessments are liable to increase the number of discrimination suits by rejected applicants and, in turn, employers' litigation expenses.”

With U.S. businesses “already saddled with burdensome regulations, our country can ill afford yet another federal mandate,” the attorneys general wrote.

In a separate letter, Mr. Morrisey said several West Virginia laws require potential hires to pass background checks to protect the public.

“One example that is particularly relevant these days — in light of our struggles with prescription drug abuse — is the law that prohibits any person who has been convicted of a felony here or in any other state from owning, being employed by or associating with a pain management clinic. The EEOC's published guidance suggests that the commission would consider this West Virginia law unlawful.”

However, the EEOC said it would maintain its stance.

“As we've said many times, neither Title VII nor the EEOC prohibit employers from obtaining or using criminal records. However, how the employer uses the information may be discriminatory. Bottom line: A criminal record should not prevent all future employment,” an EEOC spokeswoman said in a statement.

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“Moreover, the EEOC is a member of the Federal Reentry Council, which is comprised of 20 agencies,” including the departments of Justice, Labor, Education, Health and Human Services, and Housing and Urban Development.

“The mission of the Reentry Council is to reduce barriers to employment, so that people with past criminal involvement — after they have been held accountable and paid their dues — can compete for work opportunities to support themselves and their families, pay their taxes and contribute to the economy. When re-entry fails, the costs — both societal and economic — are high.”

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