Testimony of Gail Heriot, Professor of Law, University of San Diego & Member, U.S. Commission on Civil Rights Before the House Subcommittee on Workforce Protections

19 Pages Posted: 9 Jan 2017

See all articles by Gail L. Heriot

Gail L. Heriot

University of San Diego School of Law

Date Written: March 24, 2015


This is Congressional Testimony in favor of H.R. 548. That bill is aimed at correcting a narrow problem created by the EEOC's April 25, 2012 guidance. The 2012 guidance is itself a controversial document aimed at restricting an employer's discretion to make employment decisions (e.g. decisions to hire, fire or promote) based on an employee's or job applicant's criminal conviction record. It purports to draw its authority from Title VII of the Civil Rights Act of 1964 (as amended), which prohibits discrimination in employment based on race, color, religion, sex, or national origin. To get from discrimination on the basis or "race, color, religion, sex or national origin" to discrimination on the basis of criminal record, it employs disparate impact theory.

H.R. 548 seeks to solve a potential conflict between federal law (or at least the EEOC’s conception of federal law) and state or local law. On the one hand, the 2012 guidance is aimed in very vague and general terms at limiting an employer’s discretion to make employment decisions based on an employee’s criminal record. Alas, after reading it, even experienced attorneys won’t know how the EEOC wants employers to resolve particular cases. But on the other hand, state and local laws sometimes require employers to decline to hire or dismiss employees based on their criminal records.

The 2012 guidance forces employers into an impossible bind. Employers are told that maybe, but only maybe, federal law forbids what state or local law requires and that, if so, it is their duty to obey federal law and ignore state or local law. According to the guidance, it depends on the circumstances of each situation. The one thing that is clear is that if federal law demands the opposite of what state or local law demands, employers’ allegiance must be to federal law. Employers are apparently expected to make their best guess as to whether federal law overrules state or local law in any particular case. In the end it will be utterly unclear to any conscientious employer exactly what, if anything, the EEOC is attempting to require them to do.

The EEOC is, of course, correct that under the U.S. Constitution’s Supremacy Clause, federal law trumps state or local law. But the lack of clarity in the 2012 guidance makes the situation extremely unfair to employers. It doesn’t have to be that way. But it is quite clear that the EEOC is not going to fix the problem. The job therefore falls to Congress.

Keywords: Title VII, criminal background checks, ban the box, employment discrimination, ex-offender reintegration, disparate impact, Congress, Equal Employment Opportunity Commission, employment discrimination, conviction records

Suggested Citation

Heriot, Gail L., Testimony of Gail Heriot, Professor of Law, University of San Diego & Member, U.S. Commission on Civil Rights Before the House Subcommittee on Workforce Protections (March 24, 2015). Available at SSRN: https://ssrn.com/abstract=2891513 or http://dx.doi.org/10.2139/ssrn.2891513

Gail L. Heriot (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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