August 16, 2019
The U.S. Court of Appeals for the Fifth Circuit has upheld a lower court ruling blocking—on procedural grounds—the enforcement of the Equal Employment Opportunity Commission’s 2012 guidance on the use of criminal background checks for hiring and promotions.
EEOC’s guidance on criminal background checks said employers' reliance on criminal convictions to disqualify applicants could lead to discrimination allegations. The guidance encouraged employers to use “individualized assessments” instead.
The lower court struck down the guidance because it amounted to a substantive rule that the EEOC unlawfully put in place by not following the Administrative Procedures Act public notice and comment requirements.
Most large employers are already using individualized assessments, but the ruling could have wider implications for the power of federal agencies to issue and enforce “guidance” instead of going through the formal rulemaking process.
Takeaway: EEOC will eventually publish a proposed and final rule regarding criminal background checks that will largely reflect the guidance it published in 2012.