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July 26, 2013
Attorneys General to EEOC: Reconsider BMW, Dollar General Lawsuits

In a five-page letter to the U.S. Equal Employment Opportunity Commission, West Virginia Attorney General Patrick Morrissey and eight other state attorneys general express their concern over the lawsuits filed against BMW Manufacturing Co., LLC and Dollar General. In both lawsuits, the EEOC alleges that both companies’ policy of using criminal background checks as part of the hiring decision constitutes as unlawful discrimination. The letter, written to Commission Chair Jacqueline Berrien and the other four commissioners, asks that the commission reconsider their position, rescind the much-publicized EEOC Enforcement Guidance No. 915.002, and dismiss the lawsuits filed against both companies. 

BMW & Dollar General Lawsuits

The lawsuits filed June 11 against Dollar General and BMW Manufacturing allege that the employers' use of "bright-line" criminal background checks in the hiring process violates part of the 1964 Civil Rights Act. Specifically, in the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. In the Dollar General lawsuit, the EEOC claims that the company conditions all of their job offers on criminal background checks, which results in a disparate impact against African Americans.

The lawsuits were the first enforcement action against employers under the revised EEOC Enforcement Guidance for using criminal records.

Lawsuits Disregard State & Local Law

According to the letter, these lawsuits are “misguided and a quintessential example of gross federal overreach.”

As referenced in this article, Morrisey said West Virginia, in particular, is concerned with the EEOC’s aggressive overreach because the agency also is claiming to override state laws requiring criminal background checks.

“Our state has a number of laws that seek to protect the public interest by requiring potential hires to pass criminal background checks,” the attorney general said in a statement. “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.”

Along with Morrisey, the attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah signed the letter urging the commission to rescind its lawsuits.