Judge’s Ruling on Criminal Background Checks in Texas Muddles Hiring Compliance

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In 2012, the federal Equal Employment Opportunity Commission (EEOC) under the Obama administration began advising employers to use criminal background checks during job screenings only when the inquiry is directly job-related or necessary for the business. Issued in the form of guidance, the EEOC clarification described employer policies that may violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, ethnicity, and other factors.

Background Checks for Hiring

In 2013, the State of Texas filed a lawsuit against the EEOC, accusing the commission of unduly restricting their ability to exclude certain candidates in hiring practices. (In Texas, it’s against the law to hire convicted felons for certain state agency positions.) Now, a federal judge has granted Texas’ request to block some of the restrictions, particularly those on background checks in hiring.

“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 November 2013 complaint.

The Obama-era rule was dismissed on procedural grounds, with the court finding that the EEOC violated federal law by issuing the guidance without providing the public with notice and opportunity to comment. The dismissal means that the EEOC may not enforce the 2012 guidance in Texas, though the federal government could choose to appeal the judge’s ruling. The judge did not hand the state a full win, however. According to the Texas Tribune’s Emma Platoff, the EEOC can still issue right-to-sue letters in Texas cases. In addition, the judge did not affirm Texas’ right to categorically exclude felons from certain jobs.

“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,” according to Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas (Lubbock Division).

Job Seekers with Records

Christine Owens, executive director of the National Employment Law Project, expressed disappointment with the district court ruling and said it should not be confused for a license to discriminate against job-seekers with records.

“Even in Texas, Title VII stands,” said Owens. “More broadly, states and employers would do well to avoid hiring policies that exclude people with records, as they only weaken the economy, undermine public safety, and harm families and communities. In light of this order, we are exploring our legal options moving forward.”

Employee criminal background checks can be a legal minefield, so employers should be sure they’re remaining within federal and state laws when they initiate checks. Third-party, pre-employment background screening companies can help employers stay in the boundaries of the law.

Contact DataCheck today for more information.

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