Backlash against EEOC Enforcement Initiative on Background Checks Continues

In recent years, the Equal Employment Opportunity Commission (EEOC) has taken a more aggressive position against the use of criminal history in hiring and personnel decisions.  In 2012, the EEOC issued guidance warning that criminal background checks may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964, and the agency has since pursued several high-profile cases under this theory of discrimination.

These efforts have met increasing resistance, however.  In EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th Cir. 2014) and EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), the courts rather emphatically rejected the agency’s disparate impact claims and made a point to stress the importance of background checks in vetting applicants and employees.  (See our prior client alert on these two cases.)  Texas has even taken the step of suing the EEOC for “limit[ing] the prerogative of employers . . . to exclude convicted felons from employment.”

And now a bill (HR 5423) has been introduced in the U.S. House of Representatives that seeks to prevent employers from having to “act[ ] contrary to Federal, State, and local laws that require employers to conduct background checks for certain positions.”  Proposed in direct response to the EEOC’s 2012 enforcement guidance, the bill would broadly amend Title VII to permit employers “to engage in an employment practice that is required by Federal, State, or local law.”

We will continue to monitor this legislation and other attempts to limit the EEOC’s efforts to police background checks.