Implications of Fifth Circuit’s Ruling Against EEOC’s Criminal Background Check Guidance

Last month we reported about the Fifth Circuit Court of Appeals ruling in State of Texas v. EEOC and its potential impact on employers. The case focused on the EEOC’s Guidance issued in 2012 which required employers to consider a list of factors before deciding whether a job applicant’s prior criminal record should affect their employment decision. Some question exists over the EEOC’s method of rulemaking in relation to the Guidance. The EEOC maintains the Guidance is a compilation of past information, while the Fifth Circuit found it to be “substantive rulemaking” which did not comply with the Administrative Procedures Act. Regardless, the Guidance is barred by the Fifth Circuit from being applied to the State of Texas, and some attorneys believe the ruling could be applied to other employers within the Fifth Circuit’s jurisdiction.  Find out how the Guidance may still affect businesses and discrimination claims here.