Since April 25, 2012 – when the EEOC issued its guidance on the use of arrest and conviction information in employment – employers have been struggling with what it means for their hiring practices. As we wrote about here and here, the EEOC has been extremely aggressive in pursuing litigation seeking to enforce the concepts set forth in the guidance. But one of the main criticisms of the EEOC is that employers do not know how to comply and the guidance is “made up out of whole cloth.” As such, employers remain targets for Title VII pattern or practice lawsuits alleging race and national origin discrimination.
Enter the U.S. Commission on Civil Rights (“USCCR”).
In December 2012, the USCCR convened a hearing to examine the EEOC’s criminal history guidance in order to prepare a report to the President and Congress on the EEOC’s action. A transcript of that hearing can be found here. Over 300 public comments were submitted to the USCCR many from employers trying to digest the EEOC’s guidance.
Most recently, after heated debate by the Commission, on August 16, 2013, the USCCR voted unanimously to approve sections of a final draft report that is nearly 300 pages long. What is unknown at this point, however, is the substance of that draft report — because it has not been made public by the USCCR.
Based on commentary from the meeting, it appears that this first approved draft section deals with the effects on the guidance on protected classes. One can posit a pretty good guess that there will be some discussion about holes in the guidance and the fact that employers are at a loss on how to comply. But even that remains to be seen.
September 27, 2013 is the date for the next public hearing on the USCCR report and vote on the draft report dealing with the findings and recommendations section of the EEOC guidance. We believe this will be an even more interesting debate and one that may not be a unanimous vote (and likely split on party lines). It is unclear whether at that time the USCCR will make public the draft report — or if employers will have to continue to read through comments at the meetings.
For the time being, and until there is further commentary on the EEOC guidance, employers are well advised to keep an eye on this process, as well as to review their policies and processes to ensure compliance with not only state and federal laws, but also the EEOC Guidance; lest they want to be the next test case brought by the government.