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Chamber Wants Review of EEOC Background Check Guidance

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.