This morning, the House Subcommittee on Workforce Protections held a hearing on the EEOC’s regulatory and enforcement priorities that focused on the EEOC’s new criminal background check policy. As regular readers of this site know, in December 2012 the U.S. Commission on Civil Rights held a briefing on the EEOC’s criminal background check guidance. At the USCCR hearing, representatives of a wide array of businesses expressed their opposition to the guidance, and representatives of the EEOC and ex-offender advocacy groups expressed their support for the guidance. As evidenced by today’s hearing, despite the passage of time, many businesspeople, victim advocates, and members of Congress continue to oppose this guidance.

In his testimony, the National Small Business Association’s (NSBA) Todd McCracken described the quandry faced by small businesses, who find themselves “caught between competing government priorities and perspectives among different federal agencies, the courts, and the state and federal governments.” Many states prioritize the safety of consumers and categorically bar people with certain criminal records from working in certain fields. The EEOC’s guidance says that an employer can only comply with such a state requirement if the requirement complies with the guidance’s requirements. The guidance provides no safe harbor for employers who refuse to hire an employee because they are complying with a state law or regulation. Similarly, states are likely to be unimpressed if an employer violates state law by hiring a person with a criminal record for a particular position while trying to comply with the EEOC guidance. And of course, hiring a person knowing they have a criminal record (or hiring a person and not conducting a background check) leaves an employer exposed to a negligent hiring lawsuit if the employee commits a crime.

During questioning, Mr. McCracken also noted that applying the guidance poses particular difficulties for small businesses. Small businesses are less likely to have a separate HR department in-house counsel that can learn the ins and outs of the individualized assessment process. Additionally, determining the job-relatedness of a particular conviction is difficult in a small business setting, because jobs are more flexible and duties can change quickly. A conviction for assault might not be particularly relevant if an employee is just stacking bales of hay, but it might be relevant if the employer needs him to start manning the cash register in the afternoon. Determining the job-relatedness of the crime for every single duty an employee might be asked to perform is a heavy burden for small employers.

Camille Olson, representing the U.S. Chamber of Commerce, highlighted the EEOC’s inconsistent attitude toward its guidances based on what is the most advantageous position in a particular situation:

[T]he EEOC continues to send mixed signals  regarding the efficacy of its guidance positions. For example, in the State of Texas v. EEOC  litigation, the EEOC describes its guidance documents as “lack[ing] the force of law.” Yet,  only months later, the Solicitor General of the United States asked that the Supreme Court not to  grant a writ of certiorari in Young v. United Parcel Service because the EEOC is about to issue enforcement guidance on the issue. Note the inherent inconsistency in those positions.  Employers are forced to comply with policy positions set for in enforcement guidance  documents, while the EEOC argues in court that those positions have no force of law, while at  the same time the Department of Justice requests that the Supreme Court deny granting a writ of  certiorari in Young because the EEOC’s anticipated guidance will resolve the issue.

The EEOC is ranging far afield of its statutory mandate, particularly in regard to disparate impact. The criminal background check guidance is just one manifestation of the abuse of disparate impact to achieve policy goals (in this case, the reintegration of ex-offenders) that are outside the EEOC’s authority. This debate has been going on since the EEOC first mentioned in 2011 that it was considering new criminal background check guidance, although the guidance was not released until the day the EEOC voted on it in April 2012. Today’s hearing shows that the debate is not over.

The written statements of the hearing panelists are available here.