The Equal Employment Opportunity Commission’s (EEOC) 2012 guidance on an employer’s use of criminal background checks is an example of administrative overreach and should be withdrawn, according to panelists testifying before a House subcommittee panel on Tuesday. Rep. Tim Walberg (R-MI), Chairman of the House Subcommittee on Workforce Protections, said the EEOC’s guidance is “flawed” and criticized the agency for denying the public the opportunity to comment on the guidance before it was issued two years ago.  

Witness Todd McCracken, President of the National Small Business Association, explained that small businesses, which often do not have dedicated human resources personnel, are particularly vulnerable to EEOC lawsuits based on criminal background screening.  He said that employers can still be held liable for negligent hiring claims if they comply with the EEOC’s guidance.  Moreover, because there is no safe harbor in the EEOC’s guidance protecting employers that follow local or state government hiring laws, small businesses face greater liability exposure.  McCracken noted that the EEOC guidance is 55 pages long with 157 footnotes, which makes compliance especially difficult, and creates incentives for small businesses to contract out the hiring functions instead of hiring additional employees to accomplish this end, thereby undercutting the EEOC’s goal of promoting employment. 

An attorney testifying on behalf of the U.S. Chamber of Congress agreed that the EEOC’s guidance is flawed and does not comport with the agency’s core mission. 

She claimed also that the EEOC has “prioritized ligation over conciliation,” the agency’s investigations “are too long, inconsistent, and of questionable quality,” and the lawsuits the EEOC does bring are often “frivolous, unreasonable, and without foundation.”  Over the past year, the witness testified, the EEOC has had to pay employers more than $5.6 million due to “litigation failures.” The panelist also found fault with the agency’s delegation of litigation authority to the General Counsel, and his delegation, in turn, to regional offices.  

According to witnesses, there is a “disconnect” between the EEOC’s policy and the litigation it brings. For example, in two lawsuits the EEOC brought against companies for their use of criminal background checks, the agency criticized the employers for not doing individualized assessments.  EEOC Chair Berrien, meanwhile, has stated that such individualized assessments are not necessary.  

More information on this hearing, including a complete list of the panelists and links to their testimony, can be found here.