A federal court has blocked enforcement of U.S. Equal Employment Opportunity Commission rules restricting criminal background checks of job applicants by employers in Texas.
EEOC published the restrictions in 2012, called an “Enforcement Guidance” instead of a rule, to avoid the very time-consuming multi-step process required to create a federal regulation.
The guidance sets forth the EEOC’s position that employers should carefully consider their use of criminal records in making hiring decisions in order to avoid running afoul of federal civil rights law.
Among other requirements, the guidance takes the position that in almost all circumstances, an employer must make an "individualized assessment" before disqualifying an individual for employment based on past criminal conduct
The district court hearing the case brought by the state of Texas did not issue an injunction on the substance or the content of the EEOC order but held instead that the guidance was actually a regulation, which had required public notice and comment.
Although the injunction itself is specific to the state of Texas, the court’s order opens the door to similar lawsuits against the EEOC in other states, and may encourage the commission to reconsider the guidance in this light.
The EEOC has continued to bring suits against employers in other states and there is no indication it intends to stop doing so. Its recently-issued five-year strategic plan calls for emphasis on this particular issue (AA, 1-15-18, P. 3).
Employers also should remain wary because states and localities throughout the United States have enacted their own “ban the box” laws that restrict how and when employers can obtain criminal background information on job applicants.