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Written By ESR News Blog Editor Thomas Ahearn

New legislation – The “Certainty in Enforcement Act of 2014” (H.R. 5423) – seeks to limit the current U.S. Equal Employment Opportunity Commission’s (EEOC) enforcement guidance on criminal background checks and “amend Title VII of the Civil Rights Act of 1964 to exclude the application of such title to employment practices that are in compliance with Federal regulations, and State laws, in certain areas.” The full text of H.R. 5423 – which could possibly affect EEOC guidance enforcement if passed – is available at

Introduced by Representative Tim Walberg (R-MI), Chairman of the House Subcommittee on Workforce Protections, the Act would amend Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) by adding the following provision at the end:

  • (o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer, labor organization, or employment agency, or for a joint labor management committee controlling apprenticeships or other training or retraining opportunities, to engage in an employment practice that is required by Federal, State, or local law, in an area such as, but not limited to, health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties.

The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin. On April 25, 2012, the EEOC issued updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The complete EEOC Guidance is available at

However, according to the bill’s “Findings” section of H.R. 5423, shows how many businesses disagree with the EEOC enforcement guidance regarding an employer’s use of criminal records or applicants:

  • (1) The Equal Employment Opportunity Commission (EEOC) has, since 1965, been responsible for enforcing Federal laws against employment discrimination, but there are growing concerns about the enforcement and policy approach adopted by the EEOC, raising questions about whether the best interests of workers and employers are being served.
  • (2) The EEOC may promulgate guidance under the Civil Rights Act of 1964, but that guidance does not have the force of law, and in some cases has been rejected by the courts.
  • (3) In 2012, the EEOC promulgated enforcement guidance regarding the use of criminal background checks that put employers in the position of acting contrary to Federal, State, and local laws that require employers to conduct criminal background checks for certain positions, such as public safety officers, teachers, and daycare providers.
  • (4) In EEOC v. Peoplemark, Inc., a case challenging Peoplemark’s use of criminal background checks in making employment decisions, the Court of Appeals for the Sixth Circuit in October 2013 affirmed an award of $751,942 against the EEOC for prevailing defendant Peoplemark’s attorney’s and expert fees.
  • (5) In EEOC v. Kaplan Higher Education Corporation, a case challenging Kaplan’s use of credit reports in the hiring process, the Court of Appeals for the Sixth Circuit affirmed the district court’s decision granting summary judgment in favor of Kaplan and stated that the EEOC brought a case on the basis of a “homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself”.

The current status of the “Certainty in Enforcement Act of 2014” (H.R. 5423) is “Referred to the House Committee on Education and the Workforce.”

More Information about EEOC Guidance from ESR

Written by Employment Screening Resources® (ESR) Founder and CEO Attorney Lester Rosen, the complimentary whitepaper ‘Practical Steps Employers Can Take to Comply with EEOC Criminal Record Guidance’ is currently only available by emailing [email protected]. Please include your name, email, phone, company name, and title. For more blogs about the EEOC from ESR News, please visit



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