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Judge Rules EEOC Background Check Guidance Is Unenforceable

Blanket bans on hiring felons remain unlawful

A judge's gavel sits on top of a scale.

​A federal judge in Texas has ruled that the Equal Employment Opportunity Commission (EEOC) cannot enforce its 2012 guidance limiting the use of criminal background checks against employers in the state.

U.S. District Judge Sam Cummings in Lubbock decided in February that the EEOC's guidance is invalid because it was issued without notice or opportunity for public comment.

The federal government cannot enforce the EEOC's interpretation of the guidance within the state of Texas until the agency complies with the notice and comment requirements under the Administrative Procedures Act, he ruled.

"Although the injunction itself is specific to the state of Texas, the order opens the door to other, similar lawsuits against the EEOC and is likely to push the EEOC to reconsider the guidance," said Rod Fliegel, an attorney in the San Francisco office of Littler. It remains to be seen how the EEOC will react to the ruling, including whether it will reintroduce the guidance for public comment, he added.

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Even though Cummings ruled to prevent the EEOC from enforcing the guidance, he seemed to agree with its overall intent, refusing to affirm Texas' right to categorically exclude felons from jobs and allowing the EEOC to issue right-to-sue letters to claimants who allege illegal discrimination by employers in Texas.

"A categorical denial of employment opportunities to all job applicants convicted of a prior felony paints with too broad a brush and denies meaningful opportunities of employment to many who could benefit greatly from such employment," Cummings said.

Assuming the court's decision remains in place, "it puts employers on notice that courts will likely give strong deference to the EEOC's guidance when considering categorical bans regarding the hiring of felons," said Laura Maechtlen, an attorney in the San Francisco office of Seyfarth Shaw and the national chair of the firm's labor and employment department. "While employers in certain industries may have legitimate reasons for not hiring particular felons—for instance, a bank refusing to hire a felon convicted of embezzlement—businesses need to be cautious about implementing blanket hiring prohibitions of felons. The best practice for employers is to focus on the qualifications of applicants, and make hiring decisions based on merit."

Maechtlen said she expects to see more-aggressive enforcement of hiring bans in the wake of this case.

The court declined to rule on Texas' arguments that the guidance is also unlawful because it is outside the scope of statutory authority given to the EEOC and an unreasonable interpretation of Title VII, holding that such a ruling would be premature, Fliegel explained.

The Trump administration may appeal the ruling, but it is unlikely.


On April 25, 2012, the EEOC updated its guidelines regarding the use of arrest or conviction records in employment decisions. The agency stated that employers' reliance on arrest and conviction records may have a disparate impact on people based on race or national origin.

The result was that employers were cautioned to be more judicious about basing hiring decisions on applicants' criminal records. Among other requirements, employers were instructed to conduct an "individualized assessment" and speak with an applicant before disqualifying him or her based on criminal history.

Some employers have since argued that the guidance restricts their ability to screen job candidates effectively. And Texas said it infringed on the state's authority to impose categorical bans on hiring felons for certain jobs.

"The Obama administration overreached its legal authority by imposing EEOC hiring directives that preempt state law and ignore the very real risks to public safety," said Texas Attorney General Ken Paxton. Under Texas law, certain state agencies are prohibited from employing convicted felons and have enacted policies that require criminal background checks to ensure convicted felons are not hired.

"Texas has the sovereign right to impose categorical bans on the hiring of criminals for such jobs as state troopers, school teachers and jailers, and the EEOC has no authority to say otherwise," Paxton said.

In 2013, Texas sued the EEOC, challenging the guidance and asking the district court to declare that the state has an absolute right to bar convicted felons from working for state agencies.

The court declined the state's request, explaining that "although there were many categories of employment for which specific prior criminal history profiles of applicants would be a poor fit and pose far too great a risk to the interests of the state and its citizens, there were also many conceivable scenarios where otherwise qualified applicants with felony convictions would pose no objectively reasonable risk," Maechtlen said.

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