Tag: EEOC

Appeals court invalidates EEOC criminal record guidance

On August 6, the 5th Circuit Court of Appeals invalidated the EEOC’s 2012 Enforcement Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.”  See Texas v. EEOC, No. 18-10638 (August 6, 2019).  Among other things, the Guidance prohibits consideration of blanket bans on hiring people with a criminal record, and requires nuanced case-by-case consideration as to whether a particular employment policy or action satisfies Title VII’s business necessity test.  The State of Texas claimed that the Guidance was an unauthorized substantive rule that would override numerous mandatory state law bars to hiring people with a felony conviction.  After rejecting various jurisdictional defenses based on lack of finality and standing, the court affirmed the district court’s holding invalidating the Guidance. Perhaps the most significant thing about the appeals court’s ruling is its conclusion that the Guidance was a substantive rule that exceeded the EEOC’s authority to bind either public or private employers.  The district court had simply enjoined enforcement of the Guidance pending satisfaction of the notice and comment rulemaking requirements of the APA.  But the court of appeals went further, stating that “the text of Title VII and […]

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California follows federal lead in limiting employment screening

A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination.  The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity. The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII.  Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.” The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the […]

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President urged to make federal hiring fairer — but is the “ask” enough to get the right result?

A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs.[1]  In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check. The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention: Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview.

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Taking a bite out of Apple’s restrictive hiring policies

  Apple, maker of the iPhone and iPad, came under fire earlier this month when the San Francisco Chronicle revealed that the company was prohibiting those convicted of a felony in the last 7 years from working on the construction of an enormous new corporate campus in Cupertino, California.  Under pressure from the iron workers union and advocates for fair hiring policies, the company quickly reversed course: We recognize that this may have excluded some people who deserve a second chance. We have now removed that restriction and instructed our contractors on the project to evaluate all applicants equally, on a case-by-case basis, as we would for any role at Apple. But many believe that Apple can do more to end employment discrimination against those with criminal records and can set an example for the tech industry and the country in the process.

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Title VII protections based on criminal record are modest not coercive

In a recent series of posts on The Volokh Conspiracy blog promoting his book The Eternal Criminal Record, Professor James Jacobs “[speaks] strongly against a public policy that coerces private employers to ignore job applicants’ criminal records while leaving them to cover the costs imposed by ex-offender employees.”    His arguments suggest that employers are being saddled with such costs (for which no proof whatsoever is presented) because of social activism on behalf of people with criminal records. In fact, modest legal protections for people with criminal records derive from longstanding employment discrimination law principles.

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