In a scathing letter signed by nine state attorney generals (AGs), the Equal Employment Opportunity Commission (EEOC) is taken to task for its recent enforcement actions against BMW Manufacturing and Dollar General (read more here) as well as its April 2012 guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Enforcement Guidance”).   The state AGs urge the EEOC to rescind the Enforcement Guidance and dismiss the complaints against BMW Manufacturing and Dollar General regarding their use of criminal history records for employment screening purposes.

According to the state AGs:

  • The EEOC’s enforcement actions and Enforcement Guidance are an unwarranted expansion of Title VII of the Civil Rights Act.
  • The EEOC cannot use Title VII and the prevention of racial discrimination in employment as a stepping stone to create a new protected class for employment discrimination purposes, as that must be done by Congress.  The new protected class being ex-offenders.
  • The EEOC  overreaches by preempting state and local laws which impose criminal background restrictions on certain positions of employment.
  • There are practical consequences to employers for having to undertake more individualized assessments — cost and time.  Coupled with the concern that individualized assessments are liable to increase discrimination suits if rejected applicants allege it was not conducted properly, which is important considering that it is a subjective assessment as spelled out in the Enforcement Guidance.

The West Virginia AG’s Office issued a Press Release today and here is a link to the letter.   It must be noted that the letter is written by all Republican state AGs and that surely will be noted at the EEOC, which is currently composed of three Democrats, including the Chair, and two Republican Commissioners.