The role that background checks should play and the impact of what they reveal during the hiring process are under vigorous debate throughout the country. Often, this dialogue takes the form of legislative wrangling over state or municipal "ban the box" laws, rules governing how and when employers can make criminal history considerations. However, the federal Equal Employment Opportunity Commission also has a role to play. As the organization is a key arbiter of what constitutes fair hiring practices, employers look to EEOC guidance as their blueprint for fair, non-discriminatory practices.
Not every state agrees with the current version of EEOC guidance on background checks.
The EEOC issued its guidance in 2012 under the Obama administration. At that time, the EEOC said that because background checks could disproportionately disqualify minorities, employers should consider applicants on a case-by-case basis to determine if each applicant’s record would have a true impact on his or her ability to do a job.
The state of Texas filed a suit claiming that the EEOC had overstepped and that it was the state's right to implement total hiring bans on felons, for example, for certain classes of jobs. Such an action would be categorically discriminatory under the 2012 guidelines.
In 2018, the district court hearing the case ruled that the EEOC had violated procedure by not allowing for a public comment period, and as a result, the guidelines should not apply to the state until the proper commenting procedures occur. The Department of Justice, representing the EEOC, claims that Texas does not have the standing to lodge such a lawsuit in the first place.
That argument is now before the judges of the Fifth Circuit Court. The DOJ has argued that the EEOC was merely providing an updated interpretation of prior law, so no public comment period was required. The government contends that broad challenges should have no legal standing without a clear example case.
Texas is maintaining its prior position. Should the Fifth Circuit rule again in Texas's favor, the DOJ may opt to appeal to the Supreme Court for a final ruling. However, the broader impact of such a ruling is unclear, such as whether other states could or would choose to "opt out" of the EEOC guidelines.
Establishing compliance in background check procedures is a crucial step for any business that wishes to set up responsible and thorough screening processes. In addition to an awareness of state, local, and federal rules governing fair hiring, employers can use legally-compliant products to gather criminal history information. backgroundchecks.com provides these tools, such as the wide-ranging US OneSEARCH, along with a valuable learning center filled with important insights for employers of all sizes.