In an article to be published this month in the Seton Hall University Law Review, Hunton & Williams partners, Terry Connor and Kevin White have challenged the authority of the EEOC to publish its April 2012 Guidance.  That Guidance interprets Title VII to impose disparate impact liability on employers who consider the criminal background of applicants for employment as a criterion for selection.

The article first reviews the cases in which employers were found liable in negligence for failing to perform sufficient background checks after an employee caused harm to a customer or employee.  It summarizes the history of the disparate impact theory of  discrimination that has developed from the Supreme Court’s 1971 decision in Griggs v. Duke Power and argues that this EEOC initiative is an inappropriate extension of that theory. 

Based on that history, Connor and White argue that Title VII does not stretch so far as the EEOC has taken it in this Guidance and that the Guidance does not include sufficient analysis to persuade the courts to give deference to its interpretation.

The EEOC has not so far persuaded any courts to adopt its position.  In EEOC v. Peoplemark, the District Court for Western Michigan granted summary judgment to the employer after EEOC failed to produce evidence of a statistically significant racial disparity in Peoplemark’s use of the conviction criterion to screen for risk.  Another case,  EEOC v. Freeman,  is pending in the district court for the District of Maryland on the employer’s motion for summary judgment.

Not deterred, on June 11, 2013, the commission renewed its determination to pursue this theory.  It filed cases in the District of South Carolina against BMW Manufacturing, and in the Northern District of Illinois against retailer, Dollar General.  White and Connor have extensive experience in representing employers in employment matters and significant experience on this issue.  They have followed the development of the Guidance and represented employers subjected to similar challenges. Their article is likely to stimulate further argument on the subject.