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Written By ESR News Blog Editor Thomas Ahearn
On August 6, 2019, the U.S. Court of Appeals for the Fifth Circuit upheld an injunction that barred the U.S. Equal Employment Opportunity Commission (EEOC) – which enforces laws prohibiting employment discrimination – from enforcing the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” in Texas.
In November of 2013, the state of Texas sued the EEOC to challenge EEOC’s guidance on the use of criminal records by employers in hiring claiming that the guidance “constituted an unlawfully promulgated substantive rule and sought to enjoin its enforcement” and also asked for a declaration per the Declaratory Judgment Act (DJA) that the state could lawfully exclude felons from state employment.
The district court dismissed for want of jurisdiction, but another panel of the court first reversed, then withdrew its opinion and remanded. On remand, the district court dismissed the DJA claim but barred the EEOC from enforcing its guidance in Texas until it complies with the notice-and-comment rulemaking requirements of the Administrative Procedure Act (APA). The Appeals Court affirmed the injunction.
According to the ruling, Texas has long excluded persons with felony convictions in specified categories of felonies from many public jobs. Soon after EEOC issued the Guidance, Texas received notice that an individual who had been rejected for a Department of Public Safety job had filed a complaint with EEOC, challenging Texas’s no-felon hiring policy as having a disparate impact in violation of Title VII.
Texas sued the EEOC claiming “EEOC’s rule purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment.” Texas had to choose to “violate state and local laws that prohibit the ‘individualized assessments’ that EEOC requires and consider convicted felons for hire as Troopers, jailers, and school teachers, or ignore the EEOC’s rule and risk an enforcement action.”
The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin. On April 25, 2012, the EEOC approved the Guidance as part of the its efforts to eliminate unlawful discrimination in screening, hiring, or retention. The EEOC Guidance is available at www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
An employer may violate Title VII when hiring if it disproportionately screens out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. Unlawful disparate impact is established if an employer uses a practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.
“Until the dust settles, private employers potentially put themselves at risk If they read too much into this decision. It’s the decision of just one Circuit Court and it officially only impacts the state of Texas itself,” explained background check expert Attorney Lester Rosen, founder and Chief Executive Officer (CEO) of Employment Screening Resources® (ESR) and the author of ‘The Safe Hiring Manual.’
“In addition, much of the EEOC guidance on criminal records is based on long-standing legal principles. Furthermore, there are now numerous state and local laws that incorporate the EEOC guidance into Ban the Box and Fair Chance hiring rules. Many observers feel the best approach is to continue to follow the EEOC guidance in order to avoid discrimination in hiring,” Rosen added.
Employment Screening Resources® (ESR) – a leading global background check firm – offers a white paper on the “Practical Steps Employers Can Take to Comply with the EEOC Criminal Record Guidance” that includes examples and suggestions on how to remain in compliance with EEOC Guidance while performing criminal record background checks. To learn more about ESR, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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