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U.S. Commission on Civil Rights approves draft sections of report on EEOC criminal history guidance

By Pamela Wolf, J.D.

The U.S. Commission on Civil Rights (USCCR) voted unanimously on Friday, August 16, to approve the revised draft of certain sections of its planned report on the EEOC’s controversial updated criminal history guidance. The report will go to the White House and Congress. The question in mind, of course, is whether the EEOC’s sister agency will come down in favor of the guidance, or instead will be critical of it.

In December last year, the USCCR held a briefing to assess the impact of criminal background checks and the EEOC’s policy on conviction records on employment of black and Hispanic workers. Experts at the briefing underscored the need for criminal background checks, discussed issues related to criminal history data, dispelled misconceptions as to what the guidance requires, and made recommendations to eliminate confusion or improve certain aspects of the guidance.

“The commissioners will now write individual statements and rebuttals, if they wish, which will be included in the report when published,” a commission spokesperson told Employment Law Daily on August 21. The commissioners are currently slated to consider possible finding and recommendations at the USCCR’s meeting next month. The final published report will not be available for a few months, according to the spokesperson.

Support for guidance. After the December briefing, the American Civil Liberties Union (ACLU) and a coalition of civil rights and civil liberties groups sent a letter to the commission in support of the EEOC’s updated guidance. In a statement on January 23, ACLU Legislative Counsel Jennifer Bellamy said: “When employers rely on criminal records alone, they compound racial imbalances and replicate inequities in the workplace that can result in employment being denied because of errors. Fair, balanced and workable hiring procedures that do not discriminate against minorities must be available for people with arrests and criminal records.”

According to the letter, the EEOC’s guidance does not create new law. Instead it explains and reaffirms current law on screening job applicants or hiring workers, and is useful to employers to ensure compliance with Title VII of the Civil Rights Act of 1964.

“The letter reminds the Commission that people with criminal records must have access to jobs to ensure their success,” Bellamy said. “The Guidance must explain to employers how to conduct appropriate background checks without violating the rights of job applicants.”

Push-back. But not everyone supports the EEOC’s updated guidance, and the question of its appropriateness has heated up considerably. After the EEOC filed suit challenging criminal background check policies and practices at Dollar General and BMW, the attorneys general of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia in July sent a letter to the EEOC’s Chair and its commissioners, expressing concern over the lawsuits, which challenged the “use of bright-line criminal background checks in the hiring process” at Dollar General and BMW Manufacturing.

The letter 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.”

The AGs challenge the EEOC’s guidance on criminal background checks, which asserts that the use of generally applicable criminal background checks as a bright-line screening tool in the hiring process will rarely be “job-related” and “consistent with business necessity” and thus, will often violate Title VII — a proposition the AGs contend “defies common sense.”

Moreover, the AGs expressed concern that the EEOC’s efforts are not really intended to protect against race discrimination, but rather to expand protection to a new classification. “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.” According to the AGs, the EEOC’s “real target appears to be the perceived unfairness of judging an individual — of any race — solely by his or her past criminal behavior.”

Moreover, forcing employers to make the individual assessments required under the EEOC’s updated guidance will burden businesses and add more costs, according to the AGs. For these and other reasons, the AGs urged the EEOC to reconsider its guidance and dismiss the lawsuits against Dollar General and BMW Manufacturing.

It will be very interesting to see what the EEOC’s sister agency’s final report has to say about the updated criminal history guidance — will it cool the fire or fan the flames?