The Chair of the Equal Employment Opportunity Commission (EEOC) discussed the commission’s priorities and policies, including recently released guidance pertaining to the use of criminal background checks, at a hearing conducted in the House of Representatives.
The Subcommittee on Workforce Protections, a subcommittee of the U.S. House Education and the Workforce Committee, called EEOC Chair Jacqueline Berrien to discuss the recent regulatory and enforcement actions of the EEOC as well as future plans for the commission.
Throughout the hearing, the committee members questioned the commission’s recently updated guidance on the use of arrest and conviction records in employment decisions, which requires employers to consider each job applicant’s conviction records on an individualized basis and prove that denying employment is consistent with a prescribed set of standards. The EEOC guidance reasons that the pervasive use of criminal background checks to disqualify job applicants can in many cases have disparate impact on protected classes.
“As one federal judge noted almost 25 years ago, ‘Obviously a rule refusing honest employment to convicted applicants is going to have a disparate impact upon thieves’…” said Chairman Tim Walberg (R-MI) at the hearing. “Employers will bear the burden of any unintended consequences stemming from this regulatory change, not EEOC. Yet they and the public were denied an opportunity to comment on the proposal before it became final.”
Although a previous directive proposed by the Senate requested that the guidance be circulated for public comment at least six months prior to adoption, the EEOC did not have a public comment period for the guidance. When questioned about the Senate directive and more recent report language from the Senate Appropriations Committee that directed the EEOC to outline “the steps it has taken to alleviate confusion about the new guidance,” Ms. Berrien responded that she will in fact comply with the new directive in a timely manner, but she did not believe that a comment period was necessary for this guidance.
Jacqueline Berrien also responded to questions about the discrepancy that could exist between state laws and regulations and the EEOC’s updated guidance. “If the defense or the justification [of an employer’s hiring practice] is that a state law requires exclusion of all people with a particular conviction, I think that would obviously be relevant to a determination that the commission would make about what steps would need to be taken next,” said Ms. Berrien.
To view the complete hearing: Examining the Regulatory and Enforcement Actions of the Equal Employment Opportunity Commission visit the Subcommittee on Workforce Protections’ website.
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