Another group goes after EEOC’s background check guidance
The Equal Employment Opportunity Commission hasn’t made a lot of friends with its stance on background checks – and now the U.S. Commission on Civil Rights has filed a report on the subject.
In December 2012, the U.S. Commission on Civil Rights (USCCR) called a hearing to look into the EEOC’s guidance on criminal history to prepare a report for Congress and the President.
The results of that hearing weren’t made public until Feb. 20 of this year. Now that the 355-page report has finally been revealed — drumroll please — it turns out the commission made no findings, conclusions or recommendations.
What’s that mean? It means the commissioners couldn’t arrive at any consensus on any topic.
But just because the commission as a whole couldn’t agree didn’t mean individual commissioners didn’t have their say.
‘The Guidance is deeply flawed’
As Nick Fishman on the IQ Blog notes, some commissioners did draw their own, personal conclusions and include them in the report.
As you might guess, they’re not pretty.
Here’s what Commissioner Peter N. Kirsanow (joined by Vice Chair Thernstrom and Commissioner Gaziano) had to say:
The Guidance is deeply flawed. It exceeds the EEOC’s authority and was adopted without releasing a draft to the public. 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.
Ongoing controversy
As you likely remember, in early 2012 the EEOC released guidance stating that criminal background checks could have a disparate impact on minorities, and that the agency would be keeping a close eye on firms that made those checks part of their hiring process.
Since then, the agency hasn’t been afraid to go after companies for their policies — and companies (and judges) haven’t been afraid to voice their disapproval.
Nine states’ Attorneys General sent a complaint letter to the EEOC. And the entire state of Texas has filed suit against the agency, claiming that the EEOC’s stance unlawfully limits the ability of employers to exclude convicted felons from the workforce.
Attorneys Pamela Q. Devata, Gerald L. Maatman Jr., and Howard M. Wexler on the EEOC Year-End Countdown blog had the following to say about the EEOC’s guidance on background checks:
… 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 continued failure of the EEOC or private litigants to succeed in these lawsuits leaves this an area of continued uncertainty.
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