EEOC’s 2012 Guidance Update
A Status Update on The EEOC’s 2012 Guidance
In 2012, the EEOC issued a document titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (We’ll call it the “Guidance” from here on out.) EEOC’s lengthy and comprehensive document combined and refined the agency’s previous policy statements and guidance on the topic of employers’ use of criminal histories when making employment decisions.
The Equal Employment Opportunity Commission (EEOC) is the agency assigned the task of investigating and enforcing multiple federal anti-discrimination laws. Complaints of discrimination based on age, gender, ethnicity and other characteristics all fall within the EEOC’s jurisdiction.
But it’s not just federal laws that the agency enforces. In addition to those laws, the EEOC also has authority to apply and enforce agency regulations. These regulations support the EEOC’s purpose of preventing discrimination and often contain specific rules and practices that employers must follow to maintain compliance with the associated federal law.
Over time, these laws and regulations have been supplemented by so-called guidance statements, commission decisions, memorandums of understanding, and other documents which provide rich sources of information for businesses seeking a better understanding of the EEOC’s coverage and rules.
Over time, these laws and regulations have been supplemented by so-called guidance statements, commission decisions, memorandums of understanding, and other documents which provide rich sources of information for businesses seeking a better understanding of the EEOC’s coverage and rules.
These resources can be found at EEOC.gov website.
A comprehensive guide regarding the use of criminal history information by employers was published in 2012
While technically not having the same weight as a law or regulation, the Guidance is a forceful statement indicating what employers should do if they want to successfully rebut a claim of discrimination related to an applicant’s criminal history. In the language of the Guidance itself, the EEOC indicates that following its recommended individualized assessment procedures “can help employers avoid Title VII liability.” The guidance is nothing if not thorough in laying out the EEOC’s position with regard to the use of criminal history information.
As it turns out, the language of the EEOC’s Guidance leaves so little room for doubt with regard to the agency’s intent, that the 5th Circuit federal appeals court ruled in February 2018 that the Guidance was, in effect, a regulation and subject to the rulemaking requirements of the U.S. Administrative Procedures Act (APA). As a result, the court ordered the agency not to enforce the Guidance against the plaintiff in the case, the state of Texas, until the APA’s requirements had been met.
What does the 5th Circuit Court order mean for the EEOC’s Guidance?
While other federal circuit courts aren’t bound by the 5th Circuit’s ruling, it still has the potential to influence those court’s decisions. Other judges may choose to follow the 5th Circuit’s lead and restrict the EEOC’s ability to rely on the Guidance when pursuing complaints. However, employers should not assume that this development will change the EEOC’s policies concerning the use of criminal records when making employment decisions.
Despite the procedural failings of the Guidelines, the Texas court ruling appears to affirm significant portions of the Guidance. In particular, blanket bans on hiring individuals with convictions will still receive close scrutiny. On that issue, the court stated that “a categorical denial of employment opportunities to all job applicants convicted of a prior felony paints with too broad a brush.” Further, in response to the state of Texas’s demand that the EEOC refrain from issuing right-to-sue letters to individuals alleging criminal-history based discrimination, the court also said no.
It is possible that the court’s order noting the EEOC’s rulemaking fail may prompt the EEOC to less aggressively enforce the specific language of the Guidance. However, knowledge of the Guidance remains important for employers who are required to comply with Title VII of the Civil Rights Act of 1964.
Why should employers continue to treat the Guidance with deference?
The EEOC Guidance, while comprehensive, is (at least for now) still just a guide. The real teeth of EEOC enforcement are the history of past court rulings, policy statements, regulations, and advice upon which the Guidance was based. That history of case law and policy-making isn’t going anywhere. The EEOC has made its intentions clear with regard to the use of criminal history background checks and those falling within its jurisdiction would be wise to take note.
Additionally, it remains unclear if the 5th Circuit’s requirement that the EEOC follow the review and comment procedures outlined in the APA will stand. Both the state of Texas and the EEOC have file notices of their intention to appeal the February ruling.
