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EEOC cannot enforce background check guidance against Texas, federal judge rules

The guidance recommends that employers carefully consider criminal records when making hiring decisions, including that employers conduct an “individualized assessment” before making an employment decision based on an applicant’s criminal history.

A Texas federal judge ruled that the Equal Employment Opportunity Commission (EEOC)’s guidance on background checks marked a substantive change in the Commission’s interpretation of the law and was adopted without public comment, so the EEOC cannot rely on it in cases challenging Texas state agencies’ hiring practices.

The ruling blocks the EEOC and the U.S. attorney general from enforcing the guidance against the state unless the agency reissues it after letting the public weigh in, according to Law360.com.

The state of Texas also sought to have the court declare that the state has an absolute right to bar felons from serving in certain positions. Ultimately, the court declined to do so, recognizing that although felons would pose a risk for “many categories of employment,” there are many other positions in which employees with prior felonies would “pose no objectively reasonable risk.”

“To find otherwise would be illogical,” said the judge. “Thus, a categorical denial of employment opportunities to all job applicants convicted of a prior felony paints with too broad a brush.”

The case is Texas v. EEOC, case number 5:13-cv-00255, in the U.S. District Court for the Northern District of Texas.

Source: Law360.com, 2/2/2018

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