We previously blogged about the scathing letter sent by the chief legal officers representing the states of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah and West Virginia to the five Commissioners of the U.S. Equal Employment Opportunity Commission (“EEOC”) blasting the EEOC on its position that “employers’ use of bright-line criminal background checks in the hiring process violates Title VII…” and urging the EEOC to reconsider its ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ approved in April 2012.

Although it took some time to do so, the EEOC finally broke its “cone of silence” and responded to the harsh criticism levied against it by these nine Attorneys General. By letter dated August 29, 2013 the Chair of the EEOC, Jacqueline A. Berrien, wrote a responsive letter stating that the updated guidance merely “clarifies and updates the EEOC’s longstanding policy in this area” and discussed some of the issues raised by these nine chief legal officers regarding the harmful effects and overall uncertainty that the EEOC’s litigation tactics in this area have caused.

EEOC’s Response To The AG’s July 24 Letter

Responding to the Attorneys’ General criticism of the EEOC’s application of disparate impact analysis to the use of criminal history screens, Chair Berrien wrote as follows:

At the outset, I want to make clear that it is not illegal for employers to conduct or use the results of criminal background checks, and the EEOC never has suggested that it is. The EEOC’s mission is to prevent and remedy employment discrimination prohibited under federal law. Applying disparate impact analysis to criminal background checks is squarely within this mission…

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Your primary objection to the substance of the Enforcement Guidance relates to its discussion of individualized assessments. But this objection appears to be premised on a misunderstanding: that the Guidance urges employers “to use individualized assessments rather than bright-line screens.” This is incorrect. The Guidance does not urge or require individualized assessments of all applicants and employees.

Instead, the Guidance encourages a two-step process, with individualized assessment as the second step. First, the Guidance calls for employers to use a “targeted” screen of criminal records. A “targeted” screen considers “at least the nature of the crime, the time elapsed, and the nature of the job. Once the targeted screen has been administered, the Guidance encourages employers to provide opportunities for individualized assessment for those people who are screened out. Using individualized assessment in this manner provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and for individuals to correct errors in their records. The Guidance’s support for individualized assessment only for those who are identified by the targeted screen also means that individualized assessments should not result in “significant costs” for businesses.

Furthermore, as your letter acknowledges, the Guidance explains that an employer may decide never to conduct an individualized assessment if it can demonstrate that its targeted screen is always job related and consistent with business necessity:

As such, the EEOC’s “response” arguably repackages the very same guidance that these Attorneys General complained about in their July 24 letter. Additionally, the EEOC’s response fails to address several of the key points raised in the AGs’ letter, including the fact that carrying out the “individualized assessment” proposed by the EEOC could be financially ruinous for employers as well as the fact 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.

Finally, in response to the Attorneys General complaints about two of the more recent disparate impact lawsuits filed by the EEOC regarding the use of criminal background checks against Dollar General and BMW Manufacturing Co. LLC, the EEOC merely responded that, “The merits of these cases will be determined in court.”

In sum, the EEOC’s response can be summarized as follows – Our guidance is lawful, abide by it.

Implications For Employers

As we have blogged about frequently, the EEOC has been hit hard by judges from across the country in several of its high-profile disparate impact lawsuits regarding the use of criminal background screens, including EEOC v. Freeman (discussed here) and EEOC v. Kaplan Higher Education Corp. (discussed here).

While employers continue to 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, the backlash against the EEOC’s decision to bring these types of lawsuits continues to mount. The EEOC’s cursory respond to the Attorneys General July 24 letter will most certainly only add more fuel to the fire, especially as judges continue to issue opinions like those issued in EEOC v. Freeman and EEOC v. Kaplan criticizing the EEOC’s “do as we say, not as we do” tactics (given that the EEOC itself conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions).