The EEOC and Criminal Convictions: The State Attorney Generals Weigh In

The EEOC and Criminal Convictions: The State Attorney Generals Weigh In

 The EEOC's lawsuits against BMW and Dollar General have not gone unnoticed by the state attorney generals. In a letter dated July 24, nine state attorney generals expressed their concerns to the EEOC commissioners who expressed strong disagreement with the EEOC's initiative on criminal convictions in the hiring process to exclude applicants.

The letter stated that the EEOC was incorrectly applying the law in its policy guidelines on the use of convictions and expressed concern that the true purpose of the initiative is the illegal expansion of Title VII to protect former convicts. The letter went on to state that the real target of the EEOC was the perceived unfairness of judging an individual of any race solely by criminal behavior. The role of the agency is not to expand the protection of Title VII under the pretext of preventing discrimination.

The attorney generals were particularly upset with what they viewed as an egregious intrusion into state sovereignty. The EEOC's position that Title VII would preempt state law and local laws not narrowly tailored to individual circumstances is viewed as unwarranted and without any legal basis. The letter urged the commissioners to reconsider and to rescind the policy guidelines and dismissing the two lawsuits.

Now that Congress has reached an apparent resolution of its concerns with the NLRB, the EEOC may come under its scrutiny. The initiative concerning the use of criminal records is certainly only gain additional attention in light of the action of the state attorney generals. The issue will receive more media attention as the public begins to understand the implications on employers in hiring. There is no consensus on what the balance is between employers and applicants on this issue. The EEOC's attempt to preempt discussion and to implement its agenda is just now beginning to get the national attention which will trigger some very interesting policy debates.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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