The United States is in a bit of a "background check limbo" due to recent changes in how criminal background checks can affect the choice to hire—or not hire—new employees. This waiting zone is due to current legislation from August 2019, which created some ambiguity going forward about what the actual responsibilities of employers are around the country.
Understanding the EEOC
The beginning of the story has to do with the Equal Employment Opportunity Commission (EEOC), a governmental entity at the federal level charged with enforcing the goal of avoiding discrimination in hiring practices based on protected class status such as race, gender, religion, age, national origin, or disability.
This entity issued an Enforcement Guidance in 2012 that indicated how high conviction rates among certain protected classes could create a negative and discriminatory effect (deemed “desperate impact”) when criminal history was used to dismiss potential job candidates. This guidance, it would seem, would allow those who believed they were unfairly refused employment because of their criminal history to file lawsuits citing discrimination.
The Rising Tide of "Ban the Box" Laws
The findings and suggestions offered in the 2012 Enforcement Guidance exist side by side with something called "Ban the Box" legislation. These laws vary in their restrictions depending on the state, but the consensus is:
- To remove the requirement to mention on a job application that one is a felon
- To withdraw from consideration whether or not someone has been convicted of a felony in the past as part of their job application.
In other states, the "box," or place on the form where one must say that he or she is a convicted felon, is still permissible. Regardless, it is necessary to provide clear justification for why a person with a felony on his or her record is unsuitable—rather than refusing to hire anyone with such a conviction for any role.
Ultimately, the issue is one of federal decisions versus state choices. While several states support "Ban the Box" laws, or operate according to the Enforcement Guidance given by the EEOC, other states—including Texas—particularly value the freedom to make individual judgment calls about the relevance of a criminal background check at the employer level. For that reason, Texas sought to challenge the EEOC's right to make a federal ruling on this matter.
Texas' Challenge and the Jurisdiction of the EEOC
Texas sued the Equal Employment Opportunity Commission in 2013 on the grounds that the 2012 Enforcement Guidance would impact their pre-established way of choosing which government jobs required a clean criminal history.
The resulting ruling from the Fifth Circuit Court of Appeals that finally appeared in mid-2019 changed the impact of the verdict: the court ruled that the EEOC, given that it doesn't have the authority to create "substantive rules," (and this guidance was functioning as one) could not enforce such a guidance.
Texas wanted to continue to use policies that prevented any felons from working specific jobs—and, at least for now, that appears to be the way things will continue according to the courts.
An Uncertain Future for Employers; Follow State Rulings Carefully
Right now, the effect of the change is limited to Texas, where individual anti-discrimination lawsuits have been filed because of past applications of the no-felons rules for specific government work. As they see cases appearing under this banner, other courts will also hand down rulings. Whether in accordance with the Fifth Circuit's decision or in support of the Enforcement Guidance from EEOC, employers must tread carefully depending on their state.
For now, it is state-dependent whether it is legal to ask employees about their criminal history and use it as a determining factor when hiring. Know your state guidelines carefully: they may be changing as more states consider "Ban the Box" legislation.
In any case, it is wise to know for yourself—and for any questioning party—why it is relevant to have no prior felonies to hold a particular job at your company. Clarifying this information for your hiring team will remind you not to eliminate candidates who are an otherwise excellent fit and have paid their debts to society. Additionally, it will also allow you to safeguard your company's operations in a hiring environment where it is essential to consider criminal history.
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