The Equal Employment Opportunity Commission (EEOC) recently responded to a letter sent by a number of state attorneys general urging the agency to reconsider its guidance on the use of criminal background checks in employment. The guidance at issue – Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 – has been criticized since its release last year.

The letter from the attorneys general took issue with, among other things, the EEOC’s application of disparate impact analysis to an employer’s use of criminal history screens, which was the subject of two recently-filed lawsuits. According to the EEOC, the criticism is based on a “misunderstanding” of what the guidance suggests, and emphasized it is not illegal for employers to conduct or use the results of criminal background checks. The agency explains that the guidance does not urge or require employers to use individualized assessments instead of bright-line screens. Instead, the letter states that the guidance encourages a two-step process for job applicants, with individualized assessment as the second step. Under this process, an employer would first use a “targeted” screen of criminal records, which the EEOC says “considers at least the nature of the crime, the time elapsed, and the nature of the job.” Following the use of a targeted screen, employers have the opportunity to individually assess the applicants that were screened out by the first step. According to the EEOC:

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.

The EEOC further contends that the individualized assessment “is a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.”

The EEOC also responds to another assertion in the attorneys general letter that the Guidance "purports to supersede state and local hiring laws that impose bright-line criminal background restrictions that are not narrowly tailored.” The agency responds that the EEOC's Guidance is simply reciting and applying the text of Title VII, which sets forth the principle that federal law preempts contradictory state or local law. That the EEOC saw the need to address these issues indicates that there remains much confusion over the legality of when and how to conduct such background checks. A federal district court in Maryland recently dismissed an EEOC Title VII lawsuit against an employer over alleged discriminatory background checks. The court noted that employers have legitimate and at times “essential” business reasons for conducting such inquiries.