Challenges in Texas to EEOC Guidance Could Create Confusion for Employers; Opines CriminalBackgroundRecords.com

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A recent court ruling in Texas has thrown the Equal Employment Opportunity Commission’s 2012 guidance into question and ruled it unenforceable. Adam Almeida, President and CEO of CriminalBackgroundRecords.com opines: “This is a significant move by a federal judge that could have a lasting impact not only in Texas but across the country and highlights an immediate call to action for all hiring managers to review background screening policy to ensure compliance with all related laws and governance.”

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While it is too soon to understand the impact the Texas ruling will have, it will certainly have a potentially far reaching impact on the use of criminal records in pre-employment background screening.

A federal judge in Texas has thrown question into the fair, legal, and lawful use of criminal background checks by ruling 2012 Equal Employment Opportunity Commission guidance “unenforceable.” (1) Adam Almeida, President and CEO of CriminalBackgroundRecords.com opines: “The recent proclamation by a Texas federal judge regarding the use of criminal history reports in background screening should put hiring managers in that state and across the nation on notice as now is an urgent time to ensure all background screening policies are in full compliance with law and federal guidance.”

In 2012 the Equal Employment Opportunity Commission issued guidance as to the proper and legal way of conducting pre-employment background checks that utilized criminal history. The primary goal of the EEOC guidance was to stave off disparate impact in hiring.

From the Jurist.org (Feb 02, 18):

Texas, the plaintiff, claimed that the guideline was issued without notice and comment, overstepped the EEOC's authority, and was an "unreasonable interpretation" of Title VII [text] of the Civil Rights Act of 1964. The EEOC claimed that it had never enforced the guidelines against Texas, and that the guidelines were meant to address disparate impact of protected classes in hiring.

The court ruled that the guideline was a "substantive rule issued without notice and the opportunity for comment." Therefore, the guideline will not be enforceable in the state of Texas. The court did not rule on the rest of the plaintiff's complaint. (2)

In 2012 the EEOC issued guidance to employers as to the fair, legal, and lawful use of criminal background records as part of a typical pre-employment background check.

Almeida states: “The design of the EEOC guidance was to reduce the opportunity for disparate impact against African-Americans and Hispanics. Over the years there have been a number of challenges to the guidance and the recent reversal in Texas should highlight an immediate need for all hiring managers and HR departments to review all policies for compliance to ensure against the potential of costly litigation.”

While the case ruled that the EEOC could not limit Texas’ ability to utilize criminal history records the state did not achieve every goal they sought.

From TexasTribune.org (Feb 01, 18):

Texas in 2013 handed the court three major tasks: to declare that the state had a right to absolutely bar convicted felons from certain jobs, to prevent the EEOC from enforcing the new guidance and to prevent the EEOC from issuing “right-to-sue” letters that empower job applicants to allege illegal discrimination from prospective employers. (3)

Almeida concludes: “The recent ruling should immediately push hiring managers into a full review of current pre-employment policy. While it is too soon to understand the impact the ruling will have, it will certainly have a potentially far reaching impact on the use of criminal records in pre-employment background screening. Hiring managers should work with a well-qualified third-party background screening agency in order to remain fully compliant with current and pending changes to governance.”

CriminalBackgroundRecords.com is a third-party background screening company that can provide compliant solutions for all screening requirements. From pre-employment to post-hire screening, as well as volunteer, caregiver and nanny checks, CriminalBackgroundRecords.com provides background screening services across a broad array of industries. From the smallest organization to the largest corporation, CriminalBackgroundRecords.com can fulfill every background screening requirement.

Notes:
(1)    jurist.org/paperchase/2018/02/federal-judge-in-texas-rules-eeoc-guidance-limiting-use-of-criminal-background-checks-unenforceable.php
(2)    jurist.org/paperchase/2018/02/federal-judge-in-texas-rules-eeoc-guidance-limiting-use-of-criminal-background-checks-unenforceable.php
(3)    texastribune.org/2018/02/01/federal-judge-blocks-obama-era-restrictions-criminal-background-checks/
The case referred to in the above article is case number: Civil Action No 5:13-CV-255-C

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