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AGs accuse EEOC of making criminals a new protected class

A couple of weeks ago, the attorneys general from nine states asked the U.S. Equal Employment Opportunity Commission to reconsider its position on criminal background checks of job applicants. The EEOC has sued two large employers over their use of criminal background checks, alleging that the companies’ policies have resulted in qualified workers being screened out of employment and even, in some cases, fired from their jobs. New Jersey is neither a party to the lawsuits nor involved with the letter to the EEOC.

The attorneys general maintained that the EEOC does not alleged “overt racial discrimination” or “discriminatory intent” in its claims. In fact, their letter stated, “every individual who fails a criminal background check is equally refused employment.” With no racial bias alleged, the EEOC may be overreaching, attempting to expand the protections of Title VII to, the letter added, “former criminals.”

In response, the agency said that Title VII of the Civil Rights Act of 1964 does not prohibit employers from obtaining or using applicants’ or employees’ criminal records. Nor, for that matter, does the EEOC. The problem is not that the records are used but how they are used. “Bottom line: A criminal record should not prevent all future employment,” the agency said in a statement.

The use of criminal records in employment decisions has become a hot-button issue for policymakers across the country over the past few years. The “ban the box” movement has gained momentum in cities and states in an effort to keep employers from automatically disqualifying applicants who have said “yes” to criminal history questions on application forms. In New Jersey, Newark and Atlantic City have adopted ban the box laws.

Asking the question about convictions is not the problem for many applicants. Their problems arise when their potential employers look at the criminal histories provided by the FBI.

We’ll explain in our next post.


Business Insurance, “Change criminal background check policy: Attorneys general to EEOC,” Judy Greenwald, July 25, 2013



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