Most businesses perform criminal background checks on job applicants, but the EEOC guidance frowns on such checks and creates new legal tripwires that could spark federal lawsuits. One EEOC commissioner who opposed the new policy, Constance Barker, warned in April that “the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do.” …

It is difficult to overstate the EEOC’s zealotry on this issue. The agency is demanding that one of Mr. Livingston’s clients—the Freeman Companies, a convention and corporate events planner—pay compensation to rejected job applicants who lied about their criminal records. …

The EEOC’s new regime leaves businesses in a Catch-22. As Todd McCracken of the National Small Business Association recently warned: “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.”