Bluefield Daily Telegraph, Bluefield, WV


July 26, 2013

Federal overreach

Criminal background checks logical

— — West Virginia Attorney General Patrick Morrisey believes two lawsuits filed against Mountain State businesses by the U.S. Equal Employment Opportunity are “misguided” and examples of “gross federal overreach.” He makes a valid point in light of the details of this federal challenge.

Morrisey, and attorney generals from eight other states, are disputing the EEOC’s claim that employers’ use of criminal background checks of potential employees constitutes unlawful discrimination under federal law. The lawsuits were filed against two businesses operating in West Virginia, BMW Manufacturing and Dollar General.

Morrisey, and the eight other attorney generals, are urging EEOC Commission Chair Jacqueline Berrien and the other four commissioners 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 could violate Title VII of the Civil Rights Act of 1964.

But Morrisey says the federal challenge could override existing state law in 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.”

Criminal background checks, as well as drug testing, have become a common part of the hiring process. Giving the federal government the authority to tell local businesses that they must hire an individual whose past criminal history is a red flag for potential problems sets a troubling precedent.

Businesses have a responsibility to ensure the safety of their employees, and the general public they serve. If a local business is forced by the federal government to hire an individual with a known and violent criminal background, how do you reach a balance between the rights of the convicted felon and the public safety of employees and the general public? And allowing a convicted felon to be hired at a pain management clinic makes little sense in light of the state’s rampant prescription drug abuse problem.

The EEOC argues that using criminal background checks as a screening tool in the hiring process could in many cases violate the disparate impact prohibition under Title VII, which prohibits intentional discrimination. But Morrisey disagrees — arguing that the lawsuits seek to expand Title VII protection to convicted felons.

“These lawsuits defy common sense,” Morrisey said. “An employer may have any number of nondiscriminatory reasons for not wanting to hire people who cannot pass a criminal background check. Even if the use of criminal background checks in hiring might seem unfair to some, the law does not prohibit it. ... 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.”

We agree. This is another blatant example of overreach by the federal government.

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