As we’ve shared previously, the EEOC issued enforcement guidance last year barring employers from administering a blanket refusal to hire applicants with a criminal history. Instead, employers must conduct an “individualized assessment” of the applicant’s specific criminal history in light of the specific requirements of the job, potentially a painstaking task. According to the EEOC, blanket no-hire policies discriminate against minorities on the basis of race and national origin. The guidance forces employers to choose between hiring an ex-con they might not otherwise employ or risk getting sued. Since then, we’ve been helping employers evaluate their policies and practices to conform in a manner that balances their legitimate safety and risk concerns. But it’s not always easy.

Turning up the heat, the EEOC launched some high profile enforcement actions. Targets have included some big names, like BMW and Dollar General. In response, the attorneys general of nine states — Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and Virginia – are standing up for employers. They have challenged the EEOC’s authority to treat criminals as a protected class. The EEOC’s position not only impacts private employers in those states, like BMW and Dollar General, but also handcuffs state employers as well, as the EEOC contends that its guidance trumps state laws that ban hiring criminals for certain positions. Not surprisingly, the attorneys general assert that the EEOC’s position usurps state sovereignty.

Despite the growing opposition by state AGs, employers should remain alert to the issue and weigh the risks of compliance verses non-compliance. If you have not evaluated and updated your recruiting and selection policies and procedures in view of the EEOC’s guidance, contact one of our employment attorneys for help.

By Christopher S. Thrutchley, cthrutchley@dsda.com