5th Circuit Ruling Does Not Change ‘Ban-the-Box’ Law Requirements

Employers advised not to amend criminal-background-check policies

Roy Maurer By Roy Maurer August 14, 2019
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​Attorneys advise HR not to make any changes to their employment screening policies after a court ruled that guidance provided by the U.S. Equal Employment Opportunity Commission (EEOC) on applicants with criminal records is not enforceable in Texas.

The 5th U.S. Circuit Court of Appeals ruled that the EEOC exceeded its authority when it issued the guidance encouraging employers to conduct individualized assessments of applicants with criminal records and not put a ban on hiring those individuals.

"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. He is also the author of The Safe Hiring Manual (Facts On Demand Press, 2017). "It's the decision of just one circuit court, and it officially only impacts the state of Texas itself."

Employers should proceed cautiously, agreed Alonzo Martinez, associate counsel for compliance at background-screening firm HireRight. "I wouldn't amend existing procedures," he said. "Continue to perform individualized assessments as required, and in general promote fair-chance hiring, because it's the right thing to do. It's uncertain how this decision will be interpreted by other circuits and unclear how it will apply—if at all—to private-sector employers."

Rosen added that much of the EEOC guidance on criminal records, issued in 2012, is based on long-standing legal principles, and there are numerous state and local laws that incorporated the EEOC guidance into hiring regulations. "The best approach is to continue to follow the EEOC guidance in order to avoid discrimination in hiring," he said.

Martinez explained that while the 2012 guidance lacks the power of binding law, "it is certainly respected as guidance in the realm of litigation, particularly as it relates to the part of the process of assessing whether an employer's hiring practices are discriminatory. I don't think this decision changes that." 

[SHRM members-only toolkit: Conducting Background Investigations and Reference Checks]

Under the guidance, employers are instructed to assess each applicant's criminal record and evaluate the nature and gravity of the offense, the amount of time since the conviction and the relevance of the offense to the job in question.

"The EEOC's guidance placed employers between a rock and a hard place when it came to complying with barrier crime legislation—those laws that bar certain individuals from working in certain regulated roles," Martinez said. "Employers have had to reconcile the barrier crime laws in particular states that exclude these individuals from employment with complying with the EEOC guidance."

One of those states, Texas, challenged the agency's guidance in 2013, arguing that it conflicted with its laws related to hiring people with criminal records for certain jobs in the state government.

But since 2012, after initial blowback to the guidance, employers and business groups have largely accepted it and promoted individualized assessment policies. During that time, 35 states and more than 150 cities and counties have passed "ban-the-box" laws that prevent an employer from using a criminal conviction to disqualify a job candidate.

More Legal Challenges Likely

Although the 5th Circuit's ruling applies only to Texas, the decision will "undoubtedly result in widespread legal challenges to the EEOC's guidance," said S. Joseph Stephens III, an attorney in Dinsmore law firm's Cincinnati office.

Another indication that those challenges would be forthcoming was the curious brief filed by the Trump administration's Department of Justice (DOJ). While the DOJ argued before the 5th Circuit on behalf of the EEOC, it declared that it doesn't agree with the Obama-era guidelines limiting the use of criminal-background checks in employment and will not enforce it nor compel any federal government agency to comply with it.

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