The U.S. Court of Appeals for the Fifth Circuit issued a potentially game-changing decision earlier this month on the EEOC’s Enforcement Guidance on criminal background checks. The case is State of Texas v EEOC (5th Cir. 8/6/2019). An applicant rejected for employment at the Texas Department of Public Safety filed a complaint with EEOC, alleging the Department’s no-felon policy violated Title VII because it has a disparate impact on African American applicants.
EEOC’s investigation of such charges, and the decision whether to refer them for enforcement, is governed by a 2012 Enforcement Guidance, known as the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.” Rather than submit to an EEOC investigation and potential enforcement action, Texas sued EEOC, alleging its Guidance unlawfully limits the prerogative of employers to exclude convicted felons from employment. State and local laws in Texas prohibit hiring persons convicted of certain crimes. The EEOC Guidance, on the other hand, disapproves of blanket bans of hiring of persons with criminal convictions. Instead, the Guidance declares that employers should conduct an individualized assessment of the applicant to determine whether the applicant’s criminal history warrants exclusion from employment.
A judge in the U.S. District Court for the Northern District of Texas issued an injunction in February 2018 that prohibited EEOC from using its Enforcement Guidance in to investigate the Texas no-felon policy. But, that injunction was to last only until EEOC subjected the Guidance to legally required notice and opportunity for public comment required of all substantive rulemaking. On appeal, the Fifth Circuit affirmed the injunction, but in the game-changing move, modified it to remove the language that lifted the injunction after EEOC put the rule through notice and comment. The effect of the Court of Appeals’ modification was to make the injunction permanent. There was no need to put the Guidance through the notice and comment procedure, the Court concluded, because Title VII provides EEOC no legal basis to issue the Guidance in the first place. 
What is the Enforcement Guidance on Criminal Background and Why Does it Matter?
EEOC has long taken the position that an employer’s consideration a person’s arrest and/or conviction record to make employment decisions has a disparate impact on certain minorities. EEOC’s position is based upon national arrest and conviction data showing African American and Hispanic males have disproportionate rates of arrests and convictions relative to their population. While critics of EEOC’s Guidance do not question the national arrest and conviction data, what is controversial is EEOC’s presumption that disparate impact liability exists whenever a particular employer excludes persons from employment because of their criminal background. In EEOC’s view, an employer can legally justify reliance on criminal background checks only to the extent the employer can prove such reliance is “job related” and “consistent with business necessity.”
Historically, an employer could satisfy job relatedness and business necessity of criminal background checks if the employer took into account the following factors for excluded applicants: 1) the nature and gravity of the offense; 2) the time that has passed since the conviction and/or completion of the sentence; 3) the nature of the job held or sought. These factors came to be known as the “Green” factors, named after the case Green v. Missouri Pacific Railroad Co. (8th Cir. 1977).
Although the 2012 Guidance reiterated that employers must satisfy the Green factors, it added “suggestions” for additional “best practices” employers should use to avoid disparate impact liability, including the following:
1) If the employer’s use of criminal background information is “validated” in accordance with the Uniform Guidelines on Employee Selection Procedures; or
2) If the employer conducts a “targeted screen” (i.e., the employer targets for criminal conviction inquiry only those positions where it may be relevant to the position), followed by an “individual assessment” of applicants who are excluded by the screen. The individual assessment is supposed to consider factors such as the age of the applicant when the conviction occurred; the number of offenses; the facts or circumstances of the conduct that led to the conviction; the length and consistency of employment before and after the conviction; employment or character references, and efforts and rehabilitation or training.
If indeed the Guidance offers merely “suggestions” or “best practices” for employers, why is it such a big deal? After all, it’s not the law, or even a legally enforceable regulation. Nonetheless, the Guidance is intended to have, and does in fact have, real world impact on employer behavior. The Guidance binds EEOC staff when conducting investigations, and directs their decisions about whether to refer employers for enforcement actions. It limits the Agency’s discretion about how to view evidence; for example, the fact that an employer has a racially balanced workforce is not sufficient to overcome, in and of itself, the presumption that its use of criminal background checks results in disparate impact liability. EEOC contends its best practices should be used even where state or local laws automatically disqualify applicants with certain criminal backgrounds. According to EEOC, such laws are not a defense to disparate impact liability under Title VII. Employment lawyers advise their clients the best way to avoid an EEOC investigation or enforcement action is to design your criminal background check around EEOC’s suggested best practices. While following such advice may keep EEOC at bay, conducting an individual assessment of each applicant rejected because of a criminal background can be burdensome for employers that process a high number of applications. Plus, the individual assessment criteria are inherently subjective, and excluding an applicant based upon subjective criteria does not necessarily insulate an employer from a claim.
The impact of the EEOC Enforcement Guidance goes beyond EEOC decision making. Plaintiff’s lawyers frequently cite EEOC documents in legal briefs as persuasive authority on the interpretation of Title VII and other anti-discrimination laws. Even though the Guidance is not a regulation and is not entitled to deference by a court, some courts nonetheless defer to EEOC’s interpretation of the law contained in the Guidance. Litigants in Iowa have even argued that Iowa state courts should defer to the EEOC Guidance in interpreting the Iowa Civil Rights Act, a law over which is has no jurisdiction whatsoever. In short, what starts as an EEOC “suggestion” for a “best practice” morphs over time into a legal requirement, the violation of which may involve significant economic damages and other relief to an aggrieved complainant.
No one is advocating the use of screening procedures that have a disparate impact on minority applicants when there are reasonable alternative procedures that would mitigate such an impact. What concerns critics of the EEOC’s 2012 Guidance is that EEOC overreached with its suggested best practices. In its zeal to limit employer use of criminal background screens, EEOC neglected the legitimate need of employers in some cases to err on the side of excluding applicants based simply on their criminal history, without the necessity of a subjective individual assessment.
What is the Effect of the Fifth Circuit’s Ruling?
There are several important takeaways from this Ruling:
- According to the Fifth Circuit, the problem was not that EEOC failed to go through the notice and comment procedure before implementing the Enforcement Guidance, but that it has no legal authority to issue such Guidance at all. The Court ruled Title VII allows EEOC to promulgate regulations only on procedural matters, not matters of substance. EEOC has issued many other Guidance documents on various substantive aspects of the anti-discrimination laws, and this ruling puts them all into question (at least in the Fifth Circuit).
- Outside the Fifth Circuit, including in Iowa, it is possible EEOC will continue to rely on its Enforcement Guidance regarding criminal background checks. But, Fifth Circuit’s ruling gives employers in other jurisdictions ammunition to challenge EEOC’s authority to rely on the Guidance. The ruling also can be used to try to dissuade courts, including state courts, from giving any deference to the EEOC’s view of the law as set forth in the Guidance.
- This ruling may embolden some employers to revisit burdensome and expensive criminal background screening practices adopted in the wake of the 2012 Guidance.
- This ruling does nothing to change the law in those states and localities that have enacted so-called “ban-the-box” laws or otherwise prohibit an inquiry into an applicant’s criminal background. It is important to be aware of the law in your local area when developing policies and procedures for evaluating an applicant’s criminal background.
- The Fifth Circuit’s ruling is likely not the last word. As noted above, the Court’s reasoning is broad enough to call into question all documents EEOC has published over many years addressing the substantive application of the law. This issue is likely to arise in other circuits, perhaps creating the opportunity for Supreme Court review down the road.