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National News

States Take On Feds As EEOC Oversteps Boundaries

August 01, 2013 posted by Steve Brownstein

Attorney General Patrick Morrisey announced that West Virginia, together with attorneys general in eight other states, sent a letter to the U.S. Equal Employment Opportunity Commission expressing concern about lawsuits filed by the commission that claim employers’ use of criminal background checks of potential employees constitutes unlawful discrimination under federal law.

The letter says the lawsuits, filed against Dollar General and BMW Manufacturing Co. LLC, are “misguided and a quintessential example of gross federal overreach.” The attorneys general urge Commission Chair Jacqueline Berrien and the other four Commissioners to reconsider the lawsuits and the published agency guidance driving the lawsuits, which assert that refusing to hire someone for failing a criminal background check often will violate Title VII of the Civil Rights Act of 1964.

Morrisey said West Virginia has a special concern with the EEOC’s aggressive overreach because the agency also is claiming to override state laws requiring criminal background checks.

“Our state has a number of laws that seek to protect the public interest by requiring potential hires to pass criminal background checks,” Morrisey said. “One example that is particularly relevant these days — in light of our struggles with prescription drug abuse — is the law that prohibits any person who has been convicted of a felony here or in any other state from owning, being employed by or associating with a pain management clinic. The EEOC’s published guidance suggests that the commission would consider this West Virginia law unlawful.”

Title VII prohibits intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but have a disproportionally adverse effect on minorities (known as “disparate impact”). In published agency guidance and in the lawsuits, the EEOC argues that using criminal background checks as a screening tool in the hiring process will in many cases violate the disparate impact prohibition. The agency claims that criminal background checks have an adverse effect on African-American applicants and are often not justified by business reasons.

The attorneys general disagree that race discrimination is the EEOC’s actual concern and believe the agency simply seeks to expand Title VII protection to former criminals—something Congress has never required.

“These lawsuits defy common sense,” Morrisey said. “An employer may have any number of nondiscriminatory reasons for not wanting to hire people who cannot pass a criminal background check. Even if the use of criminal background checks in hiring might seem unfair to some, the law does not prohibit it. It is not the commission’s role to unilaterally expand the protections of Title VII under the pretext of preventing racial discrimination. At a time when West Virginia businesses are already saddled with a multitude of burdensome regulations, the last thing we need is another federal agency freelancing and imposing even more unnecessary requirements.”

Dollar General is one of the largest private employers in West Virginia. In 2012, DOLGENCORP Inc., the parent company of Dollar General, was listed as the 28th largest private employer, according to information from WorkForce West Virginia. In 2011, the company was ranked at No. 30.

Morrisey was joined in the letter by attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah.