The letter was written on July 25, 2013 by West Virginia Attorney General Patrick Morrisey, and is joined by attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah The letter was reprinted in the West Virginia Record (see The letter is in response to recent lawsuits against Dollar General, which is the 28th largest private employer in West Virginia, and BMW Manufacturing Co. LLC. Both cases have been discussed in recent Alerts.

Morrisey’s main concern is that EEOC actions and guidance override state laws requiring criminal background checks. He noted “Our state has a number of laws that seek to protect the public interest by requiring potential hires to pass criminal background checks” and, as an example noted further than the EEOC’s guidance would relate to “any person who has been convicted of a felony here or in any other state from owning, being employed by or associating with a pain management clinic.

Morrisey disagrees with EEOC’s position that criminal background checks that adversely impact African Americans are often not job related, and that the EEOC’s actual concern is to expand Title VII protections to former criminals. He suggests that this protection is something that Congress has never required.

He also asserted that the EEOC lawsuits “defy common sense, noting:

An employer may have any number of nondiscriminatory reasons for not wanting to hire people who cannot pass a criminal background check. Even if the use of criminal background checks in hiring might seem unfair to some, the law does not prohibit it. It is not the commission’s role to unilaterally expand the protections of Title VII under the pretext of preventing racial discrimination

He concluded that the lawsuit against Dollar General occurs in conjunction with West Virginia’s concerns that its businesses already face a “multiple of burdensome regulations” and that “the last thing we need is another federal agency freelancing and imposing even more unnecessary requirements.”

Stay tuned … this could get very interesting.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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