Law360 (04/04/12) Abigail Rubenstein

The U.S. Chamber of Commerce wants the U.S. Office of Management
and Budget to make it mandatory for the U.S. Equal Employment
Opportunity Commission to seek public comment before issuing any
new guidance. In a letter to the OMB, the chamber said the EEOC
is planning to issue two guidance documents that both relate to
“interaction of disparate impact” under Title VII of
the Civil Rights Act of 1964. One of the documents is about
employer use of credit history, and the other is about employer
use of criminal convictions. “By all accounts, the EEOC is
now preparing to approve these significant guidance documents
without making them available for public comments and without
seeking review by the OMB,” the letter claims.

The chamber says its members are worried that the guidance could
eliminate or limit the use of the two tools used by employers
when making hiring and other decisions. The letter also says the
guidance might not interpret Title VII in a balanced way, so a
pre-adoption comment period would help control the more
controversial aspects of the guidance. Attorneys assert that the
EEOC’s upcoming guidance may make employers more vulnerable
to discrimination claims over their use of background checks.