July 7th, 2016 | Sterling

Ruling Could Set Stage for Battle Over EEOC Background Check Guidance

 EEOC Background Check Guidance

There is an interesting development regarding the Equal Employment Opportunity Commission’s 2012 guidance on the use of criminal histories for employment background checks. The U.S. Court of Appeals for the 5th Circuit just reversed and remanded the district court’s dismissal of Texas’ complaint challenging the EEOC’s guidance on the use of criminal histories for employment background checks. 

This development is not only noteworthy for employers in the state of Texas but for all employers because if Texas ultimately prevails, it could significantly blunt EEOC’s efforts to enforce the guidance.

Quick History

You might recall that the guidance set forth new “recommendations” (defacto regulations) for employers when they conduct employment background checks on prospective and current employees. The most demanding of these recommendations was for employers to consider removing the question from a job application that asks if the candidate has ever been convicted of a crime and to conduct an individualized assessment if a criminal record is revealed on a background check.

In 2013, the state of Texas challenged the EEOC guidance in federal court on grounds that it interferes with a number of the state’s legal barrier to felons applying for certain position.

The case was originally dismissed because the district court found that Texas lacked standing because no enforcement action had actually been taken against it pursuant to the Guidance.

Why Is This Important to You?

Employers that are regulated by state laws that conflict with the EEOC guidance have been in a Catch-22 for four years now. For instance, if the state mandates that those with felony convictions for specific crimes cannot work in schools, they are forced to decide whether to follow the state law and automatically disqualify the candidate or to follow the EEOC guidance.

While we haven’t seen a great deal of enforcement in this regard, there are examples. For instance a school district in Ohio was sued by two former employees after their background checks revealed prior criminal convictions. The school argued they were just following state law. Their motion to dismiss was denied by the Southern District of Ohio and the case was able to move forward. 

Beyond actual enforcement is the threat of enforcement. As we all know, the cost to defend yourself against EEOC enforcement is highly time consuming and cost intensive. It cost millions of dollars for Freeman Companies to prevail when EEOC alleged that they were engaged in discriminatory hiring practices due to their use of criminal background checks and credit reports.

What Should You Do?

Back to the Texas case. In reversing the district court’s ruling the 5th Circuit wrote that “[i]n defending the Guidance against the scrutiny of the federal courts, the EEOC comes down hard and often on the mantra that the Guidance is not final,” but the Guidance “is a blanket policy that the EEOC has committed itself to applying with respect to virtually all public and private employers.” 

There is nothing to do right now other than to monitor this case and to continue following the EEOC guidance. Don’t worry. We got you covered on the monitoring part. We’ll be sure to write more as the case unfolds. As far as complying with the guidance, we have a few recommendations for you.

  • Do not practice blanket exclusions of candidates with criminal records.
  • There are no “safe harbors” for state law conflicts.
  • Individualized assessments are de facto requirements.
  • Banning the box is recommended for avoiding EEOC scrutiny.
  • If a claim is filed against you by the EEOC, anticipate a systemic investigation of your criminal background screening practices.

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