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 regarding employer use of criminal histories in employment decisions. Since then, though, EEOC guidelines have changed.

As an employer, here’s what you need to know.

What is the EEOC? 

The Equal Employment Opportunity Commission (EEOC) is an agency that investigates and enforces various 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 the authority to implement and enforce agency regulations and other fair chance act policies.

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 guidance statements, commission decisions, memorandums of understanding, and other documents that provide rich sources of information for businesses seeking a better understanding of the EEOC’s coverage and rules.

These resources are on the EEOC.gov website.

EEOC Guidelines on Background Checks

While technically not having the same weight as a law or regulation, the 2012 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.”

In summary, the guidelines state that it is illegal to order background checks on applicants if your company is making the decision based on the applicant’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). If a company decided to ask only applicants of a certain race about their criminal records, for example, that would qualify as discrimination.

The EEOC also advises against attempting to obtain an applicant’s genetic information, including family medical history, or using it in any way to make employment decisions. (For more details on this law, see the EEOC’s publications explaining the Genetic Information Nondiscrimination Act, or GINA.)

Employers should not ask any medical questions before they issue a conditional job offer. If the applicant has already begun the position, your company should not ask medical questions unless you have documentable, objective evidence that the applicant is unable to safely perform the duties of the job due to a medical condition.

What Does the 5th Circuit Court Order Mean for the EEOC’s Guidance?

While the 5th Circuit’s ruling doesn’t bind other federal circuit courts, 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 scrutiny.

For example, the EEOC advises against denying all applicants with prior felony convictions and instead evaluating applicants on a case-by-case basis. 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.

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 essential for employers who are required to comply with Title VII of the Civil Rights Act of 1964.

How Should Employers Treat EEOC Guidelines?

The EEOC Guidance, while comprehensive, is (at least for now) still just a guide. The real substance of EEOC enforcement lies in the history of past court rulings, policy statements, regulations, and advice, which informed the Guidance. That history of case law and policy-making isn’t going anywhere.

The EEOC has made its intentions clear concerning 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 filed notices of their intention to appeal the February ruling.

In the meantime, the Guidance offers not only a detailed explanation of the reasoning behind the limits placed on the use of criminal history background checks but also a set of best practices that employers can follow to ensure their employment practices are above reproach. Adhering to the advice offered by the organization that chooses whether to prosecute an employer for a discriminatory act seems like a good idea, doesn’t it?

We Help Your Team Stay Compliant

The safest way to not only improve your background checks but to remain in compliance with federal and state guidelines is to partner with an employment screening company that specializes in FCRA compliant background checks. Contact us to request a free consultation.

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.