On July 24, 2013, the chief legal officers representing the states of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah and West Virginia sent a joint letter to the five commissioners of the Equal Employment Opportunity Commission (“EEOC”) with a clear message: enough is enough.

The letter blasts the EEOC on its position that “employers’ use of bright-line criminal background checks in the hiring process violates Title VII…” The EEOC believes that a neutral policy of using prior criminal convictions as a job screen has a “disparate impact” on minorities and it crystallized its position in guidance it issued in April 2012. The EEOC’s position on background checks has been roundly criticized by courts, scholars, and employers alike. Undeterred, the EEOC continues to file federal lawsuits accusing employers who consider criminal histories in hiring of violating Title VII. In the July 24, 2013 letter, the Attorney Generals directly criticize the EEOC’s tactics: “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.”

The July 24, 2013 letter may be the most stinging rebuke to the EEOC on the subject to date. It should carry significant weight given that nine states, through their respective Attorney Generals, are backing the letter. Employers insisting on clarity and predictability with regard to their criminal background check policies may have to await the outcome of pending lawsuits; in the interim, they can take heart that they have allies in state governments.

EEOC Targets Employers’ Criminal Background Check Policies

In its 2012 guidance, the EEOC attacked the use of criminal histories in hiring under a “disparate impact” theory. See our previous blogs on this issue here and here. Under this theory, the EEOC must demonstrate statistical evidence that a neutral criminal background check policy disproportionately affects a protected class. If it meets its burden, an employer must prove that screening for applicants’ criminal histories is job-related and consistent with business necessity. Finally, the EEOC can succeed if it shows that the employer refuses to adopt an available alternative that serves the employer’s legitimate needs but has a lesser disproportionate effect on a protected class.

According to the EEOC, national data shows that African Americans and Hispanics are disproportionally arrested and jailed compared to the general population. The EEOC contends that excluding applicants based on their criminal histories results in a “disparate impact” based on race and national origin. Based on this rationale, in its 2012 guidance, the EEOC presumes that use of criminal history information disparately impacts minorities and imposes on employers the burden of rebutting the presumption.

The EEOC offers employers two ways to establish that using criminal history information when hiring is “job related and consistent with business necessity.” First, employers may conduct validity studies showing that prior criminal conduct is relevant to work performance or behavior. But the EEOC itself concedes that making this connection is next to impossible. Second, the EEOC suggests that employers may develop “targeted screens” and provide an opportunity for “individualized assessment” for anyone who is identified as a result. The EEOC acknowledges that Title VII does not require individualized assessment, but contends that absent individualized assessment, the use of criminal background screens is likely to violate Title VII.

Flaws In The EEOC’s Position

In the July 24, 2013 letter, the states’ Attorney Generals challenge the recent lawsuits the EEOC has filed carrying out the policies reflected in the 2012 guidance and targeting employers’ consideration of criminal histories to screen out potential applicants. Their critiques fall into three categories. First, they argue that EEOC’s guidance and the theories underpinning its recent lawsuits are not grounded in existing law; rather, if accepted, the EEOC’s theories would “illegitimate[ly] expan[d] Title VII protection to former criminals.”

Second, even assuming a policy shielding individuals from the consequences of their criminal histories is necessary, the Attorney Generals argue that the authority to do so lies with Congress, not the EEOC. Indeed, it may be appropriate for the nation’s legislative and judicial branches to address societal problems that are at the root of imbalances among the conviction rates of individuals. But such a task falls outside the EEOC’s powers to address particular forms of Title VII discrimination. In sum, the Attorney Generals argue that by prosecuting employers for use of race-neutral criminal background screens, the EEOC has improperly taken on a role that is assigned to Congress under the Constitution.

Third, on a practical level, they point out that carrying out the “individualized assessment” proposed by the EEOC could be financially ruinous for employers. The July 24, 2013 letter states:

“Forcing employers to undertake more individualized assessments will add significant costs. Employers will have to spend more time and money evaluating applicants that they would not have previously considered due to their criminal history and, in many cases, are unlikely to hire even after a more thorough vetting. In addition, more individualized assessments are liable to increase the number of discrimination suits by rejected applicants and, in turn, employers’ litigation expenses.”

The July 24, 2013 letter urges the EEOC to “reconsider your position, rescind the EEOC Enforcement Guidance..., and dismiss the [pending lawsuits].”

Implications For Employers

Employers face the unenviable task of deciding whether to screen for applicants’ criminal histories and face the risk of an EEOC enforcement action or whether to hire individuals with criminal backgrounds and face civil lawsuits alleging, for example, negligent hiring claims. It remains to be seen whether Commissioners Berrien, Barker, Feldblum, Lipnic, and Yang will heed the pointed criticisms in the July 24, 2013 letter. Will the EEOC reconsider its position on the use of criminal background checks in hiring? Will it cease spending tax dollars to further an agenda that amounts to “gross federal overreach”? Will it withdraw its “misguided” lawsuits against employers who rely on race-neutral criminal background checks to supplement their hiring policies?