Texas Sues EEOC over Guidance for Criminal Background Checks

The State of Texas has filed suit against the U.S. Equal Employment Opportunity Commission (EEOC) over Guidance for use of criminal records of job applicants by employers for criminal background checks that may exclude convicted felons from employment. The complaint STATE OF TEXAS vs. EEOC is available at http://www.esrcheck.com/file/State-Of-Texas-vs-EEOC.pdf.

The Dallas Business Journal reports Texas Attorney General Greg Abbott filed suit against the EEOC saying the state’s hiring guidelines limit employers from excluding convicted felons from employment to ensure that they do no hold positions of public trust. The full story is available at http://www.bizjournals.com/dallas/news/2013/11/04/state-of-texas-sues-over-eeoc.html.

On April 25, 2012, the EEOC – the agency that enforces federal laws prohibiting employment discrimination – approved an updated ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.’ The full Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

“The EEOC guidance issued in April 2012 on the use of criminal records in hiring decisions has the potential to totally change how every employer in America approaches hiring,” says Attorney Lester Rosen, Founder and CEO of background check firm Employment Screening Resources® (ESR). “The EEOC has filed lawsuits against employers for hiring practices that allegedly create a ‘disparate impact’ on protected groups of people.”

According to Rosen, author of ‘The Safe Hiring Manual’ and a frequent speaker on issues involving employment background checks, the three claims made by Texas in the lawsuit are:

  • Texas has a right to place an absolute bar on employing persons convicted of a felony for certain types of employment such as police officers.
  • The EEOC’s Enforcement Guidance should be declared unlawful and set aside on the ground that EEOC has exceeded its statutory authority: “Congress withheld rulemaking authority from the EEOC, yet the agency has unlawfully circumvented those limits on its power by announcing a substantive interpretation of Title VII, backed by the credible threat of civil prosecution and the issuance of right-to-sue letters.”
  • The EEOC’s interpretation Of Title VII cannot abrogate State Sovereign Immunity and is therefore unlawful.

“There is no way to know whether this litigation will ultimately succeed but what is clear is that it will take some time to go through the courts, and in the meantime, employers do need to pay close attention to the issues surrounding the fair use of criminal records and to ensure that they are receiving accurate information from their screening service provider,” adds Rosen. “Regardless of this litigation, the issue of getting ex-offenders back into the workforce remains critical.”

Rosen has also written a whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance’ to help employers better understand how to properly use criminal records of job applicants during the hiring process. The complimentary whitepaper is available to employers by emailing EEOCwhitepaper@esrcheck.com.

Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide background screening firm accredited by ‘The National Association of Professional Background Screeners (NAPBS®). For more information about background checks, please call Toll Free 888.999.4474 or visit http://www.esrcheck.com/.






About Employment Screening Resources® (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit http://www.esrcheck.com or call toll free 888.999.4474.

About ESR News:  The Employment Screening Resources® (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com. To subscribe to the ESR News Blog Feed, visit http://www.esrcheck.com/wordpress/feed/. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.