The Equal Employment Opportunity Commission, according to recent news reports, is making a particular effort to restrict allegedly discriminatory use by employers of criminal background checks. Because African-Americans and Hispanics are more likely to be arrested or convicted of crimes than members of other racial and ethnic groups, the EEOC’s thinking goes, an employer policy that excludes job applicants based on past arrests or convictions will have a disparate impact on African-Americans and Hispanics and, if not job-related and justified by business necessity, may violate Title VII of the Civil Rights Act of 1964.

In April 2012, the EEOC issued a new Enforcement Guidance regarding such employer criminal background checks. Some civil rights advocacy groups praised the document, stating that it will help “remove unfair barriers for people who have moved beyond their pasts” and discourage employers from discriminating against employees who have paid their debt to society.”

But critics raised both substantive and procedural concerns about the new guidance. Substantively, critics noted that the new policy does not do enough to make clear in what circumstances an employer may use a background check; it notably contains no “safe harbors” and may chill some lawful use of checks. The Guidance was also criticized for claiming to pre-empt state laws requiring some types of employers to conduct criminal background checks, placing firms in “a damned if you check, damned if you don’t” bind. Because the Guidance may encourage employers to change their hiring procedures to benefit one racial group, it may also violate the Equal Protection Clause of the Fourteenth Amendment.

Some social science research also suggests that use of criminal background checks may actually lead to increased hiring of African-Americans. Employers barred from checking criminal histories may be inclined to wrongfully use race as a proxy for criminal history. (Disclosure: I work at the U.S. Commission on Civil Rights for Gail Heriot, one of the signatories to this letter. But the views expressed in this blog post are my own and not necessarily those of the Commission on Civil Rights or Gail Heriot.)

Procedurally, the EEOC voted for the Guidance without giving the public opportunity to comment on a draft, arguably getting full in terrorem effect while bypassing all procedural safeguards. Constance Barker, the only member of the EEOC who did not vote in favor of the new Guidance, discussed other procedural issues at some length in her dissent.

The EEOC appears committed to rigorous enforcement of the new Guidance. At a Chamber of Commerce luncheon, EEOC member Victoria Lipnic emphasized the EEOC’s commitment to pursuing these cases, noting that “Criminal background checks are ripe for the picking.”

Although the EEOC does not ordinarily make investigations public until a case has been filed, news stories about recent targets of EEOC investigation suggest that the agency is setting a fairly high bar for “business necessity.” Such investigations include a probe into the use of checks at a company that provides security services, and also an unnamed firearms retailer, although the employer believes that federal law requires him as a federal firearms licensee to conduct such checks.

The U.S. Commission on Civil Rights recently conducted a day-long briefing investigating the EEOC’s enforcement of this policy.

This post has been edited to include a link to a recently posted U.S. Commission on Civil Rights transcript.

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