DOJ: News Release

Attorney General Fox Joins Eight Other States in Letter to EEOC

Attorney General Fox Joins Eight Other States in Letter to EEOC

Attorney General Fox announced today that Montana has joined with attorneys general in eight other states in a letter to the U.S. Equal Opportunity Commission.

The letter expresses concern over two recent lawsuits filed by the commission that claim the employers’ use of criminal background checks of potential employees constitutes unlawful employment discrimination under federal law.

The letter says the lawsuits, filed against Dollar General and BMW Manufacturing Co. LLC, are “misguided and a quintessential example of gross federal overreach.” The attorneys general urge Commission Chair Jacqueline Berrien and the other four Commissioners to reconsider the lawsuits and the published agency guidance driving the lawsuits, which assert that the use of generally applicable criminal background checks as a bright-line screening tool in the hiring process will often violate Title VII of the Civil Rights Act of 1964.

“The EEOC has gone well beyond the statute. Businesses may decide for a variety of legitimate reasons that it is not in their best interest to hire people who have been convicted of certain — or any — crimes,” Attorney General Fox said. “At a time when Montana businesses are already saddled with a multitude of burdensome regulations, the last thing we need is another federal agency freelancing and imposing even more unnecessary requirements.”

Title VII prohibits intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but have a disproportionally adverse effect on minorities (known as “disparate impact”). In published agency guidance and in the lawsuits, the EEOC argues that using criminal background checks as a bright-line screening tool in the hiring process will in many cases violate the disparate impact prohibition. The agency claims that criminal background checks have an adverse effect on African-American applicants because African Americans have higher conviction rates, and are not often job related or consistent with business necessity.

The attorneys general disagree that race discrimination is the EEOC’s actual concern and believe the agency simply seeks to expand Title VII protection to former criminals—something Congress has never approved.

“It defies common sense to suggest that a bright-line criminal conviction screen will only rarely be ‘job related’ and ‘consistent with business necessity.’ An employer may have any number of business-driven reasons for not wanting to hire individuals who have been convicted of rape, assault, child abuse, weapons violations, or murder—all crimes specifically mentioned in the complaints,” the attorneys general wrote. “No matter how unfair a bright-line criminal background check might seem to some, it is not your agency’s role to expand the protections of Title VII under the pretext of preventing racial discrimination.”

The group of attorneys general was led by West Virginia Attorney General Patrick Morrisey. Other states to sign on to the letter were Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah.

Click here to read the letter.

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