Fifth Circuit: Criminal Background Guidance by EEOC Struck Down


State of Texas


August 6, 2019


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In 2012, the Equal Employment Opportunity Commission (EEOC) issued a guidance document directed at employers, cautioning them that blanket hiring bans on job applicants with criminal convictions could lead to disparate impact Title VII liability. The rationale was that blanket bans could disproportionately impact ethnic and racial minorities. Employers using this kind of policy could invite further investigation by the EEOC and possible charges of discrimination. The guidance also instructed that an employer could potentially avoid liability by showing that the policy of not hiring applicants with criminal convictions was related to the job being filled, and consistent with the needs of the business.

The State of Texas challenged this guidance by the EEOC when an applicant brought an EEOC charge after being rejected for employment by the Texas Department of Public Safety, which had a policy of rejecting all convicted felons for employment. The 5th Circuit Court of Appeal agreed with Texas and issued an injunction against the EEOC, stating that the EEOC lacked authority to issue substantive rules regarding Title VII. While the ruling was applied narrowly to the State of Texas, employers subject to the 5th Circuit should still consider the potential implications of such blanket bans on applicants, and possible legal ramifications. Further, the decision by the court that the EEOC overstepped its authority in this instance will potentially provide persuasive authority to challenge other agency documents in the face of similar challenges.

Action Items

  1. Employers utilizing hiring bans based on criminal histories should consult with legal counsel for potential implications.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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