National News
Texas Sues EEOC over Guidance for Criminal Background Checks
November 22, 2013 posted by Steve Brownstein
The State of Texas has filed suit against the U.S. Equal Employment Opportunity Commission (EEOC) over Guidance for use of criminal records of job applicants by employers for criminal background checks that may exclude convicted felons from employment.
The Dallas Business Journal reports Texas Attorney General Greg Abbott filed suit against the EEOC saying the state’s hiring guidelines limit employers from excluding convicted felons from employment to ensure that they do no hold positions of public trust. On April 25, 2012, the EEOC – the agency that enforces federal laws prohibiting employment discrimination – approved an updated ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.’
“The EEOC guidance issued in April 2012 on the use of criminal records in hiring decisions has the potential to totally change how every employer in America approaches hiring,” says Attorney Lester Rosen, Founder and CEO of background check firm Employment Screening Resources® (ESR). “The EEOC has filed lawsuits against employers for hiring practices that allegedly create a ‘disparate impact’ on protected groups of people.”
According to Rosen, author of ‘The Safe Hiring Manual’ and a frequent speaker on issues involving employment background checks, the three claims made by Texas in the lawsuit are:
Texas has a right to place an absolute bar on employing persons convicted of a felony for certain types of employment such as police officers.
The EEOC’s Enforcement Guidance should be declared unlawful and set aside on the ground that EEOC has exceeded its statutory authority: “Congress withheld rulemaking authority from the EEOC, yet the agency has unlawfully circumvented those limits on its power by announcing a substantive interpretation of Title VII, backed by the credible threat of civil prosecution and the issuance of right-to-sue letters.”
The EEOC’s interpretation Of Title VII cannot abrogate State Sovereign Immunity and is therefore unlawful.
“There is no way to know whether this litigation will ultimately succeed but what is clear is that it will take some time to go through the courts, and in the meantime, employers do need to pay close attention to the issues surrounding the fair use of criminal records and to ensure that they are receiving accurate information from their screening service provider,” adds Rosen. “Regardless of this litigation, the issue of getting ex-offenders back into the workforce remains critical.”
