AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Equal Employment Guidelines & Regulations
In April 2012, the EEOC issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.” Citing data suggesting that blanket bans on hiring individuals with criminal records disproportionately impact minorities, the Guidance declared: “With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.” The Guidance further provided that “[a]n employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact.” It specifies that the Guidance applies to federal, state, and local government, as well as to private employers. The state of Texas sued the EEOC and the U.S. Attorney General, challenging the EEOC’s guidance on employers’ use of criminal records in hiring. The trial court enjoined the defendants from enforcing the guidance against Texas until the EEOC complied with the notice-and-comment rulemaking requirements of the Administrative Procedure Act (APA). A federal appeals court ruled that the Guidance was a reviewable final agency action that the court had jurisdiction to review. The state of Texas had standing to challenge the legality of the Guidance. On the merits, the appeals court found that the Guidance was a substantive rule subject to the APA's notice-and-comment requirement and that EEOC overstepped its statutory authority in issuing the Guidance. Since the Guidance is a substantive rule, and the text of Title VII and precedent confirmed that EEOC lacked authority to promulgate substantive rules implementing Title VII, the court modified the injunction by striking the clause “until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.” The court also modified the injunction to clarify that EEOC and the Attorney General may not treat the Guidance as binding in any respect. Texas v. EEOC, #18-10638, 2019 U.S. App. Lexis 23498, 2019 WL 3559629 (5th Cir.).
EEOC
also issues a statement against mandatory arbitration of discrimination claims.
"Policy Statement on Mandatory Binding Arbitration of Employment Discrimination
Disputes as a Condition of Employment" (July 10, 1997). www.eeoc.gov/docs/mandarb.txt
EEOC issues interpretation of when a leased
or contract employee can make a valid claim against the agency that uses his or
her services. "Application of EEO Laws to Contingent Workers Placed by
Temporary Employment Agencies and Other Staffing Firms" (Dec. 3, 1997). www.eeoc.gov/docs/conting.txt [1998
FP 20].
Also see EEOC regulations at www.eeoc.gov/regs/