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States attorneys now opposing fed’s opposition to criminal background checks for new hires

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FILE: Jan. 16, 2013: Job seekers talk with employers during a job fair in Cuyahoga Falls, Ohio. (AP)

Attorneys general across the country are fighting back against new Obama administration guidelines on businesses using criminal background checks for job applicants and two federal lawsuits that followed, calling both “a quintessential example of gross federal overreach.”

The nine attorneys general sent the letter Wednesday to the Equal Employment Opportunity Commission, which in April 2012 voted in favor of the new guidelines that warn such checks can discriminate against African-Americans because they being are arrested at a disproportionate rate compared to the rest of the U.S. population.

Fifteen months after issuing the guidelines -- which included the recommendation that businesses eliminate such policies -- the commission filed lawsuits against discount retailer Dollar General and a BMW facility in South Carolina for alleged civil rights violations.

“We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach,” the attorneys general wrote in a nine-page letter to EEOC Chairman Jacqueline Berrien and the agency’s four commissioners.

The June 11 suits allege Dollar General violated the civil rights of two applicants. In the one case, the applicant alleged she was denied employment even though a felony conviction was incorrectly attributed to her.

In the BMW case, the EEOC alleges that when the company required contract employees at the South Carolina plant to reapply for their jobs in 2008 a disproportionate percentage of those terminated were black, including some who had already worked for company contractors.

The suit also alleges BMW’s policy doesn't consider the nature of the crimes or how long ago they were committed.

All of the claimants are black, and both cases are filed in federal court, according to the EEOC. 

The commission said upon updating the policy that civil rights laws already prohibit different treatment for job applicants with different ethnic backgrounds but identical criminal histories.

However, the updates were issued out of concern that employers might disproportionately exclude minorities from getting hired because more African Americans and Hispanics are getting arrested and going to prison, according to the guideline report.

While the percentage of working-age Americans with a criminal record has increased significantly over the past 20 years, African Americans and Hispanics are arrested two to three times as much compared with the rest of the U.S. population, according to a commission report at the time of the vote.

Still, the suits have re-ignited concerns over such issues as potential federal overreach, the overlap of state and federal law and companies losing their rights to protect customers, workers and assets while trying to adhere to fair hiring practices.

Kevin Connell, chairman of the Florida-based employment and tenant screening company AccuScreen.com, told FoxNews.com on Saturday he doesn’t expect the EEOC to reverse course, but the letter is a step in the right direction.

“I’m cautiously optimistic,” he said. “My concern is the EEOC is trying to create a protected classes, which is former criminals. Anybody with some intelligence can see that.”

The letter also asks the EEOC to reconsider the lawsuits and the changes driving the suits. And it argues the guideline suggesting businesses take a more “individual assessment” of potential employees will add significant costs and become a “burden” to companies.

West Virginia Attorney General Patrick Morrisey said he has a special concern with the EEOC’s “aggressive overreach” – considering Dollar General in one of the state’s largest private employers.

The other eight attorneys general are from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina and Utah.

BMW spokesman Kenn Sparks said last month the company cannot comment on the specifics of pending litigation.

“However, BMW believes that it has complied with the letter and spirit of the law and will defend itself against the EEOC’s allegations of race discrimination,” he told FoxNews.com.   

Dollar General responded to the suit by reportedly saying it prohibits discriminatory hiring in its employment practices but its criminal background checks are "structured to foster a safe and healthy environment for its employees, its customers, and to protect its assets in a lawful, reasonable and nondiscriminatory manner."