Court "Paroles" EEOC Criminal History Guidance

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 22, 2019

In the case of the State of Texas v. EEOC (5th Cir. August 6, 2019), the Court ruled that the EEOC overstepped its statutory boundaries by issuing its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records and Employment Decisions Under Title VII of the 1964 Civil Rights Act. Although the immediate impact of the case is limited to the states within the jurisdiction of the 5th Circuit - Louisiana, Mississippi and Texas - we expect it to be used as persuasive authority in other jurisdictions.  
 
The EEOC's Guidance was premised on the discriminatory impact resulting from the statistically disproportionate rates of arrest and imprisonment of Hispanics and African Americans. There was and is a substantial disparity in the percentage between arrests and convictions of Hispanics and African Americans compared to the population overall. The EEOC's Guidance established a series of steps for employers to take before considering conviction records and where employers may only consider arrests which are currently pending. To the Fifth Circuit, the EEOC's Guidance was a "substantive rule," which it lacked the authority under Title VII to implement.  
 
So what is the practical effect on employers? We generally recommend that employers consider arrest records only in the context of whether there is a current arrest pending. Thus, do not check arrest history because there is in fact a disproportionate impact of arrests on Hispanics and African Americans compared to the overall population. And, an arrest does not speak decisively to the person's participation in a crime. When it comes to convictions (including guilty pleas), consider the recency, severity, and job-relatedness of the conviction. For example, a DUI conviction is job-related for an individual driving a forklift, but it may not be for a welder. What has the applicant or employee done since a conviction? If she or he has not had other convictions or current arrests, then arguably the conviction may be "stale" and should not be considered. Also, ask the applicant or employee for an explanation regarding the circumstances that led to the conviction. While some who are convicted may take the position that it was always someone else's fault, there are circumstances where the facts around the conviction are such that the conviction should not be a disqualifying factor for employment.