Fifth Circuit Finds EEOC Criminal Background Check Guidance Unenforceable

By Douglas Lipsky

In August, the U.S. Court of Appeals for the Fifth Circuit held that the Equal Employment Opportunity Commission’s (EEOC) previous guidance regarding the use of criminal background checks to screen candidates was unenforceable. This ruling raises potential concerns about arrests and employment discrimination for many job applicants and employees.

The Backdrop

In 2012, the EEOC issued the guidance cautioning employers on the use of criminal background checks to screen job applicants. The agency issued the guidance in 2012 after concluding that using such checks indiscriminately had a disparate impact on minority applicants who have statistically higher rates of conviction. The EEOC’s guidance also required employers to conduct “an individualized assessment” to determine whether an applicant’s criminal record would impact his or her ability to perform the position before reaching a hiring decision.

Shortly after the guidance was issued, the State of Texas sued the EEOC in federal court to block the enforcement of the guidance. Under Texas law, convicted felons had long-been excluded from public jobs and the state argued that the EEOC was unlawfully interfering with the right of employers to screen applicants based on criminal background checks. 

The district court ruled in the state’s favor, holding that the EEOC lacked the authority to issue the guidance without first opening it to public commentary. The court also held that the guidance could be reissued if the public was given an opportunity to comment. Texas appealed to the Fifth Circuit, arguing that the district court should have ruled that the EEOC lacked authority to issue the guidance entirely, regardless of whether it was open to public commentary. The appeals court agreed, finding that the EEOC overstepped its authority by issuing rules implementing Title VII of the Civil Rights of 1964. 

The Takeaway

The Fifth Circuit’s ruling will give employers greater latitude to rely on criminal background checks in hiring and retention decisions. Nonetheless, under local and state law in New York, employers are prohibited from employment discrimination based on a candidate’s arrest record. The best way to protect yourself from arrests and employment discrimination is to enlist the services of Lipsky Lowe LLP.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.