On July 24, 2013, Attorneys General from nine states sent a letter to the Equal Employment Opportunity Commission expressing their displeasure at what they describe as the EEOC’s “illegitimate expansion of Title VII protection to former criminals.” The AGs strongly urge the EEOC to rescind EEOC Enforcement Guidance No. 915.002, issued in April of 2012, and dismiss two high-profile lawsuits it recently filed.
In Enforcement Guidance No. 915.002, the EEOC expressed the view that an employer’s use of a blanket policy of excluding job applicants with certain convictions raises red flags about race discrimination and that, in order to avoid Title VII liability, employers should evaluate job candidates on an individual, case-by-case basis. The EEOC also recently filed lawsuits against Dolgencorp d/b/a Dollar General and BMW Manufacturing Co., LLC for the alleged use of such blanket policies.
In their letter, the nine AGs make the following arguments:
- The EEOC’s true motive for issuing its Guidance and filing these lawsuits is not to prevent race discrimination but rather to extend Title VII protection from employment discrimination to former criminals, something only Congress has the power to do.
- The EEOC’s approach of individualized consideration provides a greater opportunity for race discrimination than the nondiscretionary, blanket approach allegedly taken by Dollar General and BMW.
- The EEOC is intruding into state sovereignty by contending that its Guidance preempts state and local laws that impose blanket criminal background restrictions on certain positions of employment.
- The individualized assessments touted by the EEOC are burdensome to businesses in that they are time consuming, costly, and more likely to result in lawsuits being filed by rejected candidates.
The EEOC confirmed receipt of the letter but has not withdrawn its Guidance or dismissed the lawsuits against Dollar General and BMW. As such, employers should continue to consider the EEOC’s Guidance when evaluating candidates for employment.