February 13th, 2018 | Debbie Lamb, Sterling Talent Solutions

Federal Court Rules in Favor of Texas Against 2012 EEOC Guideline

In a blow against the EEOC, a federal judge recently ruled in favor of the State of Texas against the EEOC 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Currently, the ruling is directly related only to the state of Texas. The 2012 Guidance stated that employers should carefully consider criminal records in making hiring decisions to be compliant with Title VII of the Civil Rights Act of 1964. The guideline outlines that when a criminal background check reveals that a candidate has a record, employers should ensure that the nature and gravity of the offense are considered, along with the time that has passed since the conviction and the nature of the job held or sought. The Guidance also states that in almost all cases, an employer must make an individualized assessment before disqualifying an individual for a position based on their past criminal history.

State of Texas Lawsuit Against EEOC Guidance

In 2013, the State of Texas sued the EEOC challenging the ruling based on a Texas law that prohibited hiring convicted felons at certain state agencies. After many years, the challenge finally came in front of a district court for a ruling. According to Littler, “The district court agreed that the EEOC issued the Guidance – a substantive rule – without providing notice and the opportunity for comment.  As such, the district court blocked the EEOC and the U.S. Attorney General from enforcing the guidance against the State of Texas until the EEOC complies with the APA’s notice and comment requirements for substantive rules.”  In the original complaint, lawyers for the State of Texas asked the court to declare that Texas has an absolute right to bar convicted felons from working for the State or legislature in any matter. The court declined to agree with that complaint as well as the state’s request for “an injunction preventing the EEOC from issuing “right-to-sue” letters in charges alleging discrimination based on criminal history information since the issuance of those letters is not a ruling on the merits by the EEOC. 

The attorneys at Littler concluded, “It remains to be seen how the EEOC will react to the ruling in Texas, including whether it will push the EEOC to reconsider the Guidance and issue anew for public comment.” Employers should continue to monitor developments that could develop based on this ruling as well as the continuous adaptation of ban the box laws across the US.

EEOC Guidelines Impact Background Checks

The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws which apply to hiring, wages and benefits. The EEOC has two roles: prevention of law violations in the form of outreach, education and assistance programs, and enforcement by investigating, settling or litigating the laws. The EEOC establishes a Strategic Enforcement Plan every four years to prioritize and set forth strategies to integrate all components of EEOC’s enforcement efforts to have a sustainable impact in advancing equal opportunity and freedom from discrimination.

The background screening industry is highly regulated by rules from all levels of government from federal to state to local municipalities which protect both prospective candidates and background screening companies. The variety of rules can be overwhelming to an employer and if regulations are not complied with properly, an organization might have to deal with penalties. To ensure they respect the rights of applicants and employees, organizations should be aware of their obligations and develop background checking policies that consider their particular needs, risk tolerance and legal obligations.

Sterling strives to stay up-to-date on how court rulings, new EEOC findings and federal, state and local regulations will impact employment background screening companies. The key to minimizing the legal risk associated with background screening checks, especially for criminal record checks, is having a well-thought-out hiring policy in place that accounts for applicable legislation and guidance from the Equal Employment Opportunity Commission.

Find out more information and best practices to lessons learned from the EEOC revised guidelines in our white paper, 5 Lessons Employers Need to Know-The EEOC’s Criminal Background Screening Guidance.

Download the EEOC White Paper

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.