Texas Wins Challenge to EEOC Guidance on Criminal Background Checks


The Equal Employment Opportunity Commission (EEOC) can't treat its guidance on criminal background checks—which states that using such checks may not be lawful in some circumstances—as binding, a federal appeals court ruled. The court upheld but modified a lower court's order blocking the agency from enforcing its guidelines against the state of Texas.

In 2012, the EEOC updated its guidelines on employers' use of arrest or conviction records in hiring decisions. The agency said that relying on such records may have a disparate impact on applicants based on race and national origin, which are protected characteristics under Title VII of the Civil Rights Act of 1964.

The state of Texas sued the federal government, claiming that the EEOC exceeded its authority and that the guidelines conflict with Texas laws barring the employment of workers with felony convictions for certain positions. Attorneys for the state argued that Texas should be able to impose categorical bans on hiring workers with criminal backgrounds.

On Aug. 6, the 5th U.S. Circuit Court of Appeals sided with Texas, finding that the EEOC exceeded its authority by issuing the guidance. "Although the scope of the guidance is purportedly broad, EEOC has limited rulemaking and enforcement power with respect to Title VII," the appeals court said. "It may issue only 'procedural regulations' implementing Title VII and may not promulgate substantive rules."

We've rounded up SHRM Online's news and resources on this topic.

District Judge Deemed Guidance Invalid

The district court judge held that the federal government can't enforce the EEOC's interpretation of the guidance within the state of Texas until the agency complies with the notice and comment requirements under the Administrative Procedures Act. However, the judge seemed to agree with the overall intent of the guidance. In addition to refusing to affirm Texas' right to categorically exclude felons from jobs, he also allowed the EEOC to issue right-to-sue letters to claimants who allege illegal discrimination by employers in Texas. The 5th Circuit, however, modified the district court's injunction "to clarify that EEOC and the attorney general may not treat the guidance as binding in any respect."

(SHRM Online)

Ruling Doesn't Change 'Ban-the-Box' Law Requirements

Attorneys advise HR not to make any changes to their employment screening policies in light of the ruling. "Until the dust settles, private employers potentially put themselves at risk if they read too much into this decision," said Les Rosen, an attorney and founder and CEO of background-screening firm Employment Screening Resources.

(SHRM Online)

Individualized Assessments

When the EEOC updated its guidelines in 2012, employers were instructed to conduct an "individualized assessment" allowing candidates to provide evidence that a conviction is not related to their ability to perform a job. Through an individualized assessment—instead of a "blanket" policy barring all applicants with criminal histories—employers can determine whether a criminal record is specifically relevant for the position.

(SHRM Online)

Second-Chance Hiring Is a Growing Trend

Second-chance hiring—recruiting and hiring people with criminal backgrounds and eliminating obstacles to those efforts—is building momentum among policymakers, according to business community leaders and worker advocates.

(SHRM Online)

Getting Talent Back to Work

The Society for Human Resource Management (SHRM) is a leader in the effort to provide second chances to people with criminal backgrounds. SHRM created a pledge that more than 1,000 individuals, companies, associations and nonprofits have signed as of April 2019, promising to give a second chance to qualified people with criminal records. The Getting Talent Back to Work website gives employers resources to learn about and recruit from this large group of potential talent.  

(SHRM Online)

Quiz: Hiring Individuals with Criminal Records

More employers are hiring workers with criminal records to meet their organization's staffing needs but complying with the law when making decisions based on an applicant's criminal history can be complicated. Take this quiz to test your knowledge on the use of criminal background checks in employment decisions.

(SHRM Online)


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