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Objections by nine state attorneys general to the Equal Employment Opportunity Commission's criminal background checks policy “appear to be premised on a misunderstanding,” says the agency's chair in response to a letter the officials had written to the agency.
EEOC chair Jacqueline A. Berrien also denied the state attorneys general's charge that the EEOC's policy violates state and local law.
Ms. Berrien's letter to the state attorneys general is dated Aug. 29, but was only publicized this week.
In a July 24 letter, nine Republican state attorneys general had asked the EEOC 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 attorneys general's letter said the lawsuits and the EEOC's application of the law “are misguided and a quintessential example of federal overreach.”
The letter was sent by attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah and West Virginia.
In her response, Ms. Berrien says the state attorneys general's objection appears to be premised on the incorrect misunderstanding that the agency's guidance on the issue urges or requires individualized assessments of all applicants and employees.
Instead, she said, it calls for employers to first use a targeted screen of criminal records that considers the nature of the crime, the time elapsed, and the nature of the job.
Once that is complete, says the letter, the guidance encourages employers to provide opportunities for individualized assessment for those people who are screened out.
The letter also states that Title VII of the Civil Rights Act of 1964 only supersedes state or local laws when it “requires or permits an act that is inconsistent with the federal statute.”
With respect to the EEOC's BMW and Dolgencorp lawsuits, Ms. Berrien states while their merits will be determined in court, they “challenge criminal history screening processes that the Commission alleges have a disproportionate impact on African-Americans and are not job related and consistent with business necessity, in violation of Title VII.”