Why it matters: At a recent hearing before the House Subcommittee on Workforce Protections, speakers criticized the Equal Employment Opportunity Commission’s (EEOC) 2012 guidance on the use of criminal background checks. Rep. Tim Walberg (R-Mich.) opened the hearing by describing the guidance as “flawed” and an example of administrative overreaching, “making it harder for employers to do what is right.” Testimony from the National Small Business Association focused on the vulnerability of its members, as smaller companies are less likely to have dedicated human resources personnel to handle the potential legal concerns. And a representative of the U.S. Chamber of Commerce said the guidance gives “short shrift to common sense employer concerns – workplace safety and the hiring of violent felons, sexual harassment concerns and the hiring of rapists, trust and reliability in one’s workforce.” She also noted the agency’s poor track record of litigation over employers’ use of background checks, having lost the three suits brought to date.

Detailed Discussion

In April 2012, the EEOC released “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” emphasizing that while the use of criminal justice history information does not violate Title VII per se, an employer may run afoul of the law if the checks result in systemic discrimination based on race, color, national origin, religion, or sex.

Employers should endeavor to conduct an individualized assessment of a prospective employee, the agency said, by considering factors like the nature of the crime and its relation to the potential job, as well as how much time has passed since the conviction and rehabilitation efforts.

Since the guidance was released, the EEOC has filed three lawsuits alleging employers like Dollar General and BMW Manufacturing Inc. engaged in the discriminatory use of criminal background checks, disproportionately screening out African-American workers.

But at a recent hearing before the House Subcommittee on Workforce Protections, Chairman and Rep. Tim Walberg said the agency should have opened the guidance up to public comment prior to its publication, stating that the “EEOC has made it more difficult for employers to ensure the safety of their customers and clients.”

Rep. Walberg expressed concern about the fact that the agency is considering additional guidance on the issue of credit history. “It is time for EEOC to stop this nonsense, withdraw its flawed guidance, and ensure employers use the tools available to protect the men and women they serve.”

Other speakers joined Rep. Walberg in his criticism. President of the National Small Business Association Todd McCracken testified that smaller employers may lack the resources necessary to understand the guidance, which clocks in at 55 pages long with 157 footnotes. Even companies that manage to follow the guidance can face liability for negligent hiring claims, he noted.

Camille Olsen, a lawyer speaking on behalf of the U.S. Chamber of Congress, told lawmakers that “employers find themselves between a rock and a hard place” when it comes to EEOC guidance, which represents not the law itself, but the agency’s view of it.

The guidance not only suggests the need for an individualized assessment – something not required under Title VII – but in some circumstances, it competes with state law as well, Olsen testified. “It is an expensive endeavor for a nursing home or other health care facility to show that not hiring a serial rapist or drug dealer pursuant to state law is job-related and consistent with business necessity, yet that is what this guidance contemplates,” she said.

Olsen added that the guidance “gives short shrift to common sense employer concerns,” but the EEOC itself conducts criminal background checks on potential hires “because a history or pattern of criminal activity creates doubt about a person’s judgment, honesty, reliability and trustworthiness.”

One speaker – Sherrilyn Ifill, on behalf of the NAACP Legal Defense & Educational Fund – voiced her support for the guidance, calling it “commendable.” The guidance “is also consistent with the growing national and bipartisan consensus that we need to rethink our criminal reentry systems,” she told lawmakers, as to “allow the presence of an arrest or conviction record to bar an individual from meaningful employment forever, would deny to millions that most powerful and important American opportunity – a second chance.”

To read the written testimony from the hearing or watch a webcast, click here.