employment background screening, EEOC, ban the box, guidance

Texas Lawsuit Challenging the EEOC’s Guidance on Criminal Background Checks is Still Alive

In 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance to employers urging them not to use blanket hiring rules against applicants with criminal convictions in their past.  The logic is that such hiring practices could violate Title VII if they “create a disparate impact on particular races or national origins.”  Instead, the EEOC suggested, employers should assess each potential employee on an individual basis to determine whether he or she is a fit for the position.

Texas filed suit against the EEOC in November of 2013, saying that the Guidance conflicted with a Texas law that prohibits the hiring of felons for certain jobs.  Then, in August 2014, U.S. District Court for the Northern District of Texas Judge Sam R. Cummings dismissed the case, finding that Texas lacked standing to maintain its lawsuit since there had been no enforcement action against since the Guidance was issued by the EEOC.

Texas, in response to this ruling, appealed to the Fifth Circuit in November of 2014.

In June of 2016, the Fifth Circuit found that Texas does, in fact, have standing to challenge the EEOC’s Guidance because it presented “(1) an actual or imminent injury that is concrete and particularized, (2) fairly traceable to the defendant’s conduct, and redressable by a judgment in [Texas’s] favor.”  In other words, since the EEOC’s guidance on the matter was directed toward all employers, including state agencies, Texas did not need to establish a concrete injury to sue.  Instead, the Court allowed, Texas could establish two injuries for the purpose of Article III: first, the higher regulatory burden Texas would face as an employer under this new Guidance; and second, the Guidance caused Texas to “undergo an analysis, agency by agency, regarding whether the certainty of EEOC investigations stemming from the Guidance’s standards overrides the State’s interest in not hiring felons for certain jobs.”

The lone dissenter, Judge Patrick E. Higginbotham, said that the EEOC’s Guidance was only an “expression of the EEOC’s view of what the law requires.”  He also was of the opinion that Texas’ issue is not ripe for adjudication since there was no factual dispute; in other words, Higginbotham said that the standing the Court was affording Texas was false because there had been no actual injury pursuant to the issuance of the Guidance.

With so-called “fair chance” reforms like the “ban the box” movement still making plenty of waves across the country, it will be interesting to see how the District court handles revisiting this case.  If you have questions about how the EEOC’s Guidance on this matter affects your company, please call us today at 404.963.9862 or visit us online at www.thecedaliusgroup.com

The Cedalius Group offers insight into the background screening industry for educational purposes.  We always recommend you consult with your legal counsel to determine practices that best suit your business needs.