EEOC issues hiring Catch-22

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new “Enforcement Guidance” (Guidance) that is designed to restrict criminal background checks by employers.[1] This potentially unlawful and certainly ill-advised guidance threatens to impose undeserved liability and risk on employers, placing them in an irreconcilable “Catch 22” situation: Business owners will have to choose between conducting criminal background checks and risking liability for supposedly violating Title VII or following the EEOC’s Guidance, abandoning background checks, and risking liability for criminal conduct by employees.

Additionally, the EEOC has placed individual Americans at risk, as this Guidance increases the odds that they will be the victims of property crimes and violence. And to add further injury to insult, this guidance is also likely to make it more difficult for racial and ethnic minorities to obtain employment.

The U.S. House of Representatives and the Senate have already taken some actions to stop enforcement of this Guidance, but more is needed.

Despite the fact that Congress, when it passed Title VII of the Civil Rights Act of 1964, intentionally “did not confer upon the EEOC authority to promulgate rules or regulations,”[2] the EEOC issues “guidance” documents that are de facto substitutes for regulations. Indeed, courts, employers, and plaintiffs’ lawyers consider such guidance to be the standard that employers, with regard to employment law, should meet.

As several commissioners on the U.S. Commission on Civil Rights have noted, “this is a troubling practice given Congress’s clear intent that the EEOC refrain from rulemaking.”[3] Such rulemaking provides yet another example of an overreaching federal agency going beyond its statutory authority.