Without a Box to Stand on: States May Lack Right to Fight EEOC Criminal History Guidance After All

September 28, 2016


As our readers are likely aware, ordinances have been adopted in recent years in numerous jurisdictions limiting an employer’s ability to inquire about a job applicant’s criminal background. These so-called  “Ban the Box” ordinances prohibit employers from conducting criminal background checks until after giving applicants conditional offers of hire. On Friday, September 23, 2016, the Fifth Circuit weighed in on the matter when it vacated its June 27, 2016 opinion that granted Texas standing to challenge the Equal Employment Opportunity Commission’s enforcement guidance on the timing and consideration of criminal background checks in the hiring process. The appellate panel remanded to the Northern District of Texas to consider whether the recent U.S. Supreme Court decision in U.S. Army Corps of Engineers v. Hawkes Co. dictates otherwise. A copy of the appellate panel’s decision may be viewed here.

Beyond Procedure

If and when the Court reaches the substantive merits of the Texas case, it will consider (a) whether the EEOC was authorized to issue the guidance, which addresses the disparate impact of pre-hire criminal background checks on persons of color, and (b) whether the guidance’s universal scope violates the sovereignty of states, like Texas, that have conflicting laws and regulations.

As to the first issue, the crux of the enforcement guidance is that employers should narrowly tailor their consideration of applicants’ criminal histories during the hiring process by making “targeted screens” appropriate to the job in question and consistent with business necessity. Among other points, the guidance encourages individualized assessments that consider the nature and circumstances of an applicant’s criminal history and provide the applicants an opportunity to explain why their criminal records should not bar them from employment.

Although the guidance contains broad and equivocal language, employee rights advocates note that twenty-four states and over 100 cities and counties have adopted more robust “Ban the Box” ordinances that prohibit employers from conducting criminal background checks until after giving applicants conditional offers of hire. While some ordinances only restrict the timing of inquiry into applicants’ criminal histories, an increasing number restrict the nature and circumstances under which employers may revoke the offer.  Most, however, exempt positions that involve the provision of services to vulnerable persons such as schoolteachers and eldercare workers.

Philadelphia, which has one of the strictest Ban the Box laws, forbids any employer, regardless of size, from considering applicants’ arrest records or criminal convictions that are over seven years old, and requires employers to make case-by-case decisions that consider the nature and recency of the applicant’s offenses, the job duties of the prospective position, and any evidence of the applicant’s rehabilitation, including character and employment references. Austin, Texas has its own ban the box ordinance, which similarly requires employers with fifteen or more employees to make individualized assessments of applicants’ criminal histories in hiring decisions.

On the latter issue, the Commission has previously taken the position that its guidance does not supersede state or local laws. However, Title VII of the Civil Rights Act of 1964 does override such laws if they require or permit acts inconsistent with the federal statute.  Since the EEOC is tasked with carrying out the mandates of Title VII and often does so through formal guidance, the distinction is arguably academic.


Regardless of how Texas’ challenge to the EEOC fares on initial remand, it will likely be several years before the case even has the opportunity to reach the Supreme Court.  Meanwhile, as state, county, and municipal governments continue to pass new Ban the Box laws, and jurisdictions resolve to strengthen previously enacted laws, an increasing number of employers will be subjected to restrictions on when and how they may consider applicants’ criminal histories in making hiring decisions.

We at HR Legalist urge readers to reach out to their labor and employment counsel and find out how the Commission’s enforcement guidance, and any applicable Ban the Box ordinances, may affect their hiring practices.

Categorized In: Ban the Box
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