Recently, Federal District Judge Sam Cummings - sitting in Lubbock, Texas - ruled that an Equal Employment Opportunity Commission (EEOC) guideline limiting employers' use of criminal background checks in the hiring process is unenforceable in the state of Texas.
Judge Cummings stated that the EEOC's guidance is invalid because it was issued without notice or opportunity for public comment. He further ruled that the federal government is unable to enforce the EEOC's interpretation of the guidance within the state of Texas until the agency complies with the notice and comment requirements under the Administrative Procedures Act. The plaintiff at the hearing – Texas – had claimed that, in addition to overstepping the EEOC’s authority, the guidance was an “unreasonable interpretation” of the Civil Rights Act of 1964.
The Judge also found that:
“....a categorical denial of employment opportunities to all job applicants convicted of a prior felony paints with too broad a brush and denies meaningful opportunities of employment to many who could benefit greatly from such employment."
He added that there were instances where an employee's prior felony conviction would not affect public safety or the employee's ability to perform a job.
Despite Judge Cummings ruling to prevent the EEOC from enforcing their guidance, he did not disagree with its overall intent and refused to state that Texas could categorically exclude felons from jobs and allowed the EEOC to issue right-to-sue letters to claimants who allege illegal discrimination by employers in Texas.
Rod Fliegel, an attorney in the San Francisco office of Littler, stated:
“Although the injunction itself is specific to the state of Texas, the order opens the door to other, similar lawsuits against the EEOC and is likely to push the EEOC to reconsider the guidance.”
He added:
“It remains to be seen how the EEOC will react to the ruling, including whether it will reintroduce the guidance for public comment.”
If the Court’s decision remains, Laura Maechtlen, an attorney in the San Francisco office of Seyfarth Shaw and the national chair of the firm's labor and employment department, believes:
"…it puts employers on notice that courts will likely give strong deference to the EEOC's guidance when considering categorical bans regarding the hiring of felons. While employers in certain industries may have legitimate reasons for not hiring particular felons—for instance, a bank refusing to hire a felon convicted of embezzlement—businesses need to be cautious about implementing blanket hiring prohibitions of felons. The best practice for employers is to focus on the qualifications of applicants, and make hiring decisions based on merit."
She also remarked that as a result of this case, she expects to see more aggressive enforcement of hiring bans
