Texas’ Challenge of EEOC Guidance on Criminal Background Checks Advances


By John T. Ellis July 27, 2016
Texas’ Challenge of EEOC Guidance on Criminal Background Checks Advances

The state of Texas is able to mount a challenge to the Equal Employment Opportunity Commission's (EEOC's) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, according to the 5th U.S. Circuit Court of Appeals.

Many Texas state agencies maintain rules barring the hire of convicted felons, felons convicted of particular categories of felonies or persons convicted of particular misdemeanor offenses. The rules apply categorically to all applicants—if an applicant has been determined to be guilty of a covered offense, the applicant is barred from employment without regard to the particular circumstances that surround the applicant's conviction for that offense.

When the EEOC published the enforcement guidance in 2012, it articulated a new standard for criminal background checks that the agency intended to apply to all public- and private-sector employers nationwide. The guidance generally indicated that an employer's categorical exclusion of individuals with particular criminal convictions might violate Title VII if it had a disparate impact on particular protected classes.

The enforcement guidance also identified two ways for an employer to show that a challenged exclusion was permitted as being job-related and consistent with business necessity:

  • Conduct a data-driven analysis of the relationship between the criminal conduct and subsequent work performance under the Federal Uniform Guidelines on Employee Selection Procedures.
  • Alternatively, for each applicant, review the nature of the crime committed, the time elapsed and the nature of the job, and then provide a potentially excluded individual the opportunity for an individualized assessment. 

Texas sued the EEOC in 2013, asking the district court to prevent the EEOC from applying the enforcement guidance. The district court dismissed the lawsuit, primarily on grounds that Texas had not suffered an injury that gave it the right to challenge the guidance.

On appeal, the EEOC argued that the enforcement guidance was purely advisory and did not impose any obligations on Texas or expose it to any legal consequences. Texas countered by characterizing the guidance as a "mandatory scheme for employers" that placed an increased regulatory burden on the state and effectively overruled Texas laws barring applicants with certain criminal histories from being considered for specific jobs.

The 5th Circuit rejected the EEOC's position and found that Texas could sue because the EEOC had enacted the enforcement guidance with the goal of regulating how Texas—and all other U.S. employers—conducted criminal background checks.

The 5th Circuit sent Texas' challenge back to the district court for further proceedings.

State of Texas v. Equal Employment Opportunity Commission, 5th Cir., No. 14-10949 (June 27, 2016).

Professional Pointer: Employers should continue to monitor Texas' challenge to the EEOC enforcement guidance. If the challenge succeeds, it could force the EEOC to change the way it regulates employment-related criminal background checks.

John T. Ellis is an attorney with Ufberg & Associates LLP in Scranton, Pa., a Worklaw® Network member firm.


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