The Equal Employment Opportunity Commission (EEOC) issued guidance in April 2012 called “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” that restricts employers from having a blanket ban on hiring individuals with a criminal record. Employers are urged to develop “targeted screen(ing)” and “individual assessment(s)” to determine whether making a hiring decision based upon a candidate’s criminal record is job-related and consistent with a business necessity. But a six-year lawsuit filed by the State of Texas against the EEOC challenged that Guidance, arguing that it amounted to a substantive rule of law and, as such, the EEOC did not have the authority to issue it. A federal trial court entered an injunction in favor of Texas, which was appealed to the federal appeals court. In August, the Fifth Circuit Court of Appeals issued a decision agreeing with Texas and determining that the Guidance amounted to a substantive rule, which prohibits the EEOC from issuing the Guidance.
