Texas’s Challenge to EEOC Guidance on Background Checks Continues

Texas’s Challenge to EEOC Guidance on Background Checks Continues

A federal appellate court recently heard oral arguments in a case challenging the Equal Employment Opportunity Commission's (EEOC's) guidelines limiting the use of criminal background checks in employment decisions.

The state of Texas sued the federal government, claiming that the EEOC exceeded its authority and that the guidelines, issued in 2012, 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.

In 2018, a federal district court judge deemed the guidance invalid because it was issued without notice or opportunity for public comment. So the EEOC can't enforce the guidance in Texas. However, the court declined to rule that Texas may categorically exclude applicants with felony convictions from certain jobs.

[SHRM members-only toolkit: Guidelines on Interview and Employment Application Questions]

On appeal to the 5th U.S. Circuit Court of Appeal, the U.S. Department of Justice (DOJ) argued that Texas doesn't have legal standing to sue because the state can't show that it was harmed by or likely to be harmed by the guidance. "Texas has not provided any evidence that, from the time the guidance was issued to the present, the Department of Justice has ever endorsed, adopted or enforced it," the DOJ said in a legal brief.

Though the DOJ is challenging the state's authority to sue, the department isn't defending the EEOC's guidelines. The DOJ "has stated its disagreement with the EEOC's approach to disparate impact claims in the guidance in a number of respects," according to the brief.

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

Individualized Assessments

In 2012, the EEOC updated its guidelines on employers' use of arrest or conviction records in hiring decisions. The agency said that relying on arrest and conviction records may have a disparate impact on applicants based on race and national origin. Among other requirements, 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)

Judge Deemed Guidance Invalid

In the current case, 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.

(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)

Increasing Awareness

In collaboration with the Charles Koch Foundation, SHRM surveyed managers and HR professionals on their attitudes toward hiring candidates with criminal pasts. Survey results show increasing awareness and understanding that a criminal background should not disqualify someone from employment. 

(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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