On April 23, President Trump issued an executive order attempting to roll back the use of disparate impact liability in civil rights enforcement. Among other things, the order essentially directed the chair of the Equal Employment Opportunity Commission (EEOC) to drop any enforcement actions based in disparate impact analysis, despite the facts that Congress created the EEOC as an independent agency and that disparate impact liability is deeply rooted in judicial precedent and explicitly enshrined in Title VII of the Civil Rights Act. Only Congress can change the language of a statute.
Nevertheless, under the direction of EEOC Acting Chair Andrea Lucas, the EEOC followed the president’s directive on Friday by moving to dismiss the agency’s lawsuit against Sheetz, Inc. for violating federal civil rights law. According to its April 2024 complaint, approved by a commission vote, the convenience store chain “maintained a longstanding practice of screening all job applicants for records of criminal conviction and then denying them employment based on those records” and this practice disproportionately excluded Black, Native American, and multiracial applicants. Earlier on Friday, a former Sheetz job applicant sought to continue the lawsuit by intervening on behalf of a class of Black, Indigenous, and multiracial workers who were denied jobs at Sheetz because of their conviction or arrest history.
In 2012, the Equal Employment Opportunity Commission issued updated guidance on how employers can and cannot use arrest and conviction records in employment decisions. This guidance, based on court decisions applying disparate impact analysis, clarified worker rights and employer obligations under civil rights law. Research demonstrates that removing unjust barriers to employment faced by workers with records benefits those individuals, their families, communities of color, and society more broadly.
At the direction of Acting Chair Lucas, the EEOC filed a motion to dismiss the case. In response, Beth Avery, Fair Chance Program Director, issued the following statement:
“The nearly one in three U.S. adults with an arrest or conviction record, like all workers, deserve access to good jobs. Yet some employers systematically deny these workers fair opportunities to work, resulting in lifelong reductions in employment and wages.
“Acting Chair Lucas’s shameful decision to abdicate the EEOC’s important role in protecting the civil rights of workers with records, ignoring the agency’s own guidance and the rights of Sheetz workers, does not change the law or remove employer obligations to follow it. But it will likely lead more employers to ignore their legal responsibilities, making workers more vulnerable to discrimination and exploitation, families less economically secure, and communities less prosperous and safe.
“U.S. Senators must hold a hearing to scrutinize Lucas’s record of anti-civil rights actions before voting to confirm her as chair of the commission.”
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