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Thursday, June 21, 2018

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Texas federal court rules against EEOC background check guidance
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Texas federal court rules against EEOC background check guidance

A federal district court in Texas has ruled that the Equal Employment Opportunity Commission (EEOC) cannot enforce guidelines that restrict use of criminal background checks in state, potentially barring the hiring of convicted felons for many state jobs.

Per the February ruling, both the EEOC and the U.S. Attorney General are blocked from exercising EEOC's 2012  Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, an Obama-era policy aimed at easing an ex-felon's transition into the job market.

U.S. District Judge Sam Cummings in Lubbock invalidated EEOC's guidance because it was issued without notice or opportunity for public comment, he said. Cummings did seem to agree with the guidance's overall intent, refusing to affirm Texas employers' rights to categorically exclude felons from a job.

"A categorical denial of employment opportunities to all job applicants convicted of a prior felony paints with too broad a brush and denies meaningful opportunities of employment to many who could benefit greatly from such employment," Cummings said.

In 2012, the EEOC advised employers to screen an applicant's criminal history only when job-related or necessary the for business, declaring that a reliance on arrest and conviction records may unduly affect candidates based on their race or national origin.

While the EEOC never completely barred the use of background checks, Texas filed suit against the commission in 2013, stating that the policy unfairly restricted an employer's ability to exclude certain candidates in their hiring policies.

“The State of Texas and its constituent agencies have the sovereign right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise,” Texas argued in its 2013 complaint.

The February decision means the EEOC cannot enforce the 2012 guidance in state. However, the commission may still issue "right-to-sue" letters to claimants who allege discrimination in hiring decisions by Texas employers. Also, the court declined to rule on state arguments that the guidance is both an unreasonable interpretation of Title VII and outside the EEOC's authority, holding that such a ruling would be premature.

The Trump administration may decide to appeal the ruling, although observers believe this to be unlikely. It also remains to be seen whether the EEOC will reintroduce the guidance for public comment, said Rod Fliegel, an attorney in the San Francisco office of Littler.

"Although the injunction itself is specific to the state of Texas, the order opens the door to other, similar lawsuits against the EEOC and is likely to push the EEOC to reconsider the guidance," Fliegel said.

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