As we previously discussed, the U.S. Commission on Civil Rights (“USCCR”) convened a hearing in December 2012 to examine the EEOC’s criminal history guidance in order to prepare a report to the President and Congress on the EEOC’s action. On August 16, 2013, the USCCR voted unanimously to approve sections of a final draft report. Up until February 20, 2014, the draft report had not been made public by the USCCR. Well, it is finally out and it is a doozy!
The 355 page report, titled “Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy,” summarizes the testimony given from during the USCCR’s hearing as well as the nearly 300 public comments received regarding the EEOC’s criminal background guidance, including 83 from ex-offenders supporting the guidance; 121 from employer-related groups objecting to the additional burdens on employers stemming from the guidance; and two from commissioners of the EEOC – Victoria Lipnic and Chai Feldblum. Id. at 9.
Given the diverse groups that provided comments, there are statements in the report both “pro” and “con.” However, some of the more impactful statements came from USCCR Commissioner Peter N. Kirsanow, Vice Chair Abigail Thernstrom, and Commissioner Todd Gaziano who start off their remarks by calling the EEOC’s Guidance “deeply flawed.” Id. at 289. Kirsanow, Thernstrom and Gaziano go on to state that:
The foundation of the Guidance is flawed, because it misapplies disparate impact theory by failing to appropriately compare non-offenders to offenders, and by conflating arrestees with convicts. The Guidance is too difficult for a layperson to effectively apply to their hiring process, and the individualized assessment reintroduces the prospect of disparate treatment into the hiring process. In discouraging the use of criminal background checks through the complexity of the Guidance and the fear that a little knowledge can be a dangerous thing when your friendly neighborhood EEOC investigator comes calling, the EEOC leaves employers exposed to negligent hiring lawsuits. Perhaps more importantly, discouraging the use of criminal background checks leaves Americans more likely to fall victim to the behavior that leads to negligent hiring lawsuits. And unfortunately, the Guidance is unlikely to increase employment among African-American men, who are the primary purported beneficiaries.
In their closing remarks, Kirsanow, Thernstrom, and Gaziano pick up on an argument that employers around the country have been asserting ever since the EEOC issued its criminal background guidance – that it is outside of those powers vested to it by Congress. Specifically, Kirsanow, Thernstrom, and Gaziano note that:
The EEOC and various groups representing ex-offenders will argue that a criminal record should not be a life-long scarlet letter. If ex-offenders cannot find employment, they are more likely to reoffend. Fair enough. But the burden of rehabilitation shouldn’t fall on private companies… Despite the Guidance’s invocation of disparate impact theory, the main goal is to increase the employment of ex-offenders. Title VII was definitely not enacted to prohibit discrimination on the basis of criminal history. If the country wants to shift the cost of criminal rehabilitation onto private employers, Congress should pass a statute prohibiting discrimination on the basis of criminal history. Otherwise, this is outside the EEOC’s purview.
Id. at 305-307.
Implications For Employers
While many of the remarks set forth in the USCCR were very critical of the EEOC’s tactics regarding its criminal background guidance document, the EEOC has shown no signs of slowing down its enforcement in this area, as evident from a review of the August 29, 2013 letter sent by the Chair of the EEOC, Jacqueline A. Berrien, to the State Attorneys Generals who came together to criticize the EEOC’s guidance document. In sum, Chair Berrien’s response to these State Attorneys General can be summarized as follows – “Our guidance is lawful, we aren’t changing it, and employers must abide by it.”
Accordingly, while employers will likely 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 comments contained in the USCCR report will most certainly 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.