Yesterday, the EEOC issued "guidance" (h/t P.T.) on the ability of employers to use conviction and arrest records in hiring. (We'd previously noted EEOC enforcement actions in that regard.) In another example of the Obama Administration's upside-down approach to preemption, the EEOC purports to preempt local laws and regulations forbidding the hiring of criminals if the EEOC believes they contradict Title VII's disparate impact rules; employers are thus in a damned-if-they-do, damned-if-they-don't situation if they follow or don't follow those state laws since they can get sued either way, including massive tort liability for the criminal acts of their employees. And that surely won't have any effect on employers willingness to create jobs, will it?
As Michael Greve notes (h/t OL), administrative agencies have taken advantage of the Chevron and Chevron II framework to evade judicial review of administrative law. This "guidance" outside of formal administrative rule-making is a prime example of that tactic, and validates Greve's argument that "increased judicial conflict over the administrative state" with more rights for the regulated against the regulator needs to be in the offing.