Morrisey questions EEOC lawsuits

CHARLESTON – The attorney general of West Virginia and eight other attorneys general believe lawsuits against two companies, one a major employer in the state, by the Equal Employment Opportunity Commission could harm the states.

The lawsuits against BMW Manufacturing and Dollar General allege the businesses’ policy of using criminal background checks as part of their hiring process is unlawful discrimination.

However, the lawsuits impact West Virginia by pre-empting state law prohibiting anyone with a felony conviction from working at, owning or being associated with a pain management clinic and that Dollar General is one of West Virginia’s largest private employers, West Virginia Attorney General Patrick Morrisey said. Dollar General is the 28th largest private employer in West Virginia, according to WorkForce West Virginia.

“Our state has a number of laws that seek to protect the public interest by requiring potential hires to pass criminal background checks,” Morrisey said. “One example that is particularly relevant these days, in light of our struggles with prescription drug abuse, is the law that prohibits 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. The EEOC’s published guidance suggests that the commission would consider this West Virginia law unlawful.”

Morrisey and attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah wrote a letter to commission Chairman Jacqueline Berrien and the other four commissioners asking them to reconsider the lawsuits and the published agency guidance driving the lawsuits, which assert that refusing to hire someone for failing a criminal background check often will violate Title VII of the Civil Rights Act of 1964.

Title VII prohibits intentional discrimination known as disparate treatment and, in some cases, practices that are not intended to discriminate but have a disproportionally adverse effect on minorities, known as disparate impact.

In published agency guidance and in the lawsuits, the commission argues that using criminal background checks as a screening tool in the hiring process will in many cases violate the disparate impact prohibition. The agency claims that criminal background checks have an adverse effect on African-American applicants and are often not justified by business reasons.

The letter says the lawsuits filed against Dollar General and BMW Manufacturing Co. are “misguided and a quintessential example of gross federal overreach.” The attorneys general disagree that race discrimination is the EEOC’s concern and believe the agency seeks to expand Title VII protection to former criminals, which Congress has never required.

It is not the commission’s role to unilaterally expand the protections of Title VII under the pretext of preventing racial discrimination, Morrisey said.

“At a time when West Virginia businesses are already saddled with a multitude of burdensome regulations, the last thing we need is another federal agency freelancing and imposing even more unnecessary requirements,” he said.