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Morrisey wants EEOC to withdraw criminal background check lawsuits

CHARLESTON, W.Va. -- West Virginia Attorney General Patrick Morrisey and eight other states' chief legal officers urged the U.S. Equal Employment Opportunity Commission to reconsider lawsuits related to employers' use of criminal background checks on potential employees.

The lawsuits filed June 11 against Dollar General and BMW Manufacturing allege that the employers' use of "bright-line" criminal background checks in the hiring process violates part of the 1964 Civil Rights Act, according to a letter the attorneys general signed.

The EEOC has said a bright-line policy of not hiring anyone who has committed a crime is unacceptable.

"The EEOC's position is that having a criminal record should not prevent all future employment," said Christine Nazer, spokeswoman for the EEOC. "Qualified individuals with criminal records should have an opportunity to compete for jobs when their criminal records are not relevant or predictive."

Specifically, Title VII of the Civil Rights Act prohibits intentional discrimination called "disparate treatment," as well as practices not intended to discriminate but that have an adverse effect on minorities, which is called "disparate impact."

The letter from the attorneys general reads: "According to the complaints, Dollar General and BMW violated the disparate impact prohibition by using generally applicable background checks as bright-line screening tools in their hiring processes.

"Your agency contends that these polices have a disparate impact on African American applicants because African Americans have higher conviction rates, are not job related or consistent with business necessity, and are therefore unlawful under Title VII," the letter states.

Attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah joined Morrisey in urging the commission to rescind its lawsuits.

A news release from Morrisey's office said the nine 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 required."

The letter further states: "There is no allegation, for example, that the companies are employing these policies based on racial stereotypes of criminality. Nor is there any contention that the companies have treated dissimilarly individuals of different races who have similar criminal records.

"To the contrary, every individual who fails a criminal background check is equally refused employment."

An EEOC enforcement guideline that was issued in April 2012 urges employers to use individual assessments rather than bright-line screens, taking into account factors such as, "the facts or circumstances surrounding the offense or conduct, the individual's age at the time of conviction and any rehabilitation efforts."

Beth Ryan, communications director for the Attorney General's Office, wrote in an e-mail, "The Office of the Attorney General is always concerned when a federal agency sets up policy that could infringe on state law and West Virginia's economy with apparently little regard about the real-life applications or outcomes of the policy.

"We are hopeful that this letter will help to dissuade the Equal Employment Opportunity Commission from pursuing this policy further," she wrote.

Reach Caitlin Cook at caitlin.cook@wvgazette.com or 304-348-5113.


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