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In 2012 the EEOC passed a Guidance that disallows employers from discriminating against people who have criminal records. That could be overturned in Texas.

The Movement To Protect People With Minor Criminal Records

There is a nationwide effort to help people who have criminal convictions find jobs. Ban The Box laws provide a perfect example. They prevent employers from including questions about criminal records on job applications. This is done to encourage employers to learn more about applicants before making final hiring decisions.

Employers are still allowed to find out if an applicant has a criminal record. This typically occurs via a criminal background check after a conditional offer is extended. The Equal Employment Opportunity Commission (EEOC) created a Guidance that says Title VII of the 1964 Civil Rights Act is intended to prevent "blanket discrimination" of people who have any type of criminal record.

If a background check reveals that an applicant has a conviction, employers are asked to run an individualized assessment for that person. This includes considering the seriousness of their offense(s), how much time has passed and whether or not the conviction is relevant to the position for which they are applying. The EEOC hopes this will prevent employers from denying jobs to people who have minor convictions that should not make them ineligible for employment.

Millions of Americans have been arrested. According to the Pew Research Center, black Americans are incarcerated six times more frequently than other Americans. The EEOC works to help prevent employers from discriminating against individuals who are part of a protected class. They feel that refusing to hire anyone who has a criminal record creates discriminatory practices against minorities.

Texas May Go Against EEOC Guidelines

According to an article in The Nation, Greg Abbott, currently the Governor of Texas, filed a lawsuit to block EEOC laws that protect people with criminal records. At the time Abbott was the state's Attorney General. He reportedly asked the court to issue a judgment that would make it legal for state agencies to deny employment to anyone who has a criminal record and disallow the EEOC from sending "right-to-sue" letters based on claims of discriminatory practices.

Abbott's lawsuit was dismissed. In 2016, the US Court of Appeals for the Fifth Circuit reviewed this case and determined that the state of Texas has the right to challenge EEOC laws in court. The NAACP Legal Defense and Educational Fund and the National Employment Law Project have since become involved in this re-opened case. They made a motion to make the Texas Conference of the NAACP a defendant so their lawyers would have an opportunity to participate in court hearings. That motion was denied.

Since the EEOC will not be directly involved, they are represented by the Department of Justice's Civil Rights Division which is currently led by Eric Dreiband. According to the article in The Nation, this is a concern for the EEOC. Dreiband has opinions about civil rights that some believe are controversial. There is apprehension that this scenario will help Texas win the lawsuit and thus not be required to follow EEOC guidelines.

What Employers Should Know

Many states have passed laws that are intended to protect people who have minor, non-violent offenses. These laws affect all employers that operate within those states. Every employer should be aware of and compliant with such laws.

Although Texas lawmakers are hoping to allow state agencies to not be bound by EEOC guidelines, a national movement that encourages employers to consider hiring people with minor convictions continues to grow.

Backgrounds Online is dedicated to keeping up with laws that cover the hiring process, publishing educational materials and helping our clients with their compliancy efforts. If you have questions about what we can do for you, please contact us today.