Texas Court Halts EEOC’s Background Check Guidance

By Michael Klazema on 3/7/2018

Enforcement for guidance issued by the Equal Employment Opportunity Commission (EEOC) is on hold in Texas after a lawsuit against the organization resulted in a split judgment by a federal judge. The suit concerned the EEOC’s 2012 guidance, which advised employers not to use criminal history as an absolute bar to employment. That guidance, which held such hiring policies would have a disparate, discriminatory impact on minority groups, is currently enforceable in most parts of the United States.

The EEOC’s 2012 guidance warned employers blanket use of criminal history information in hiring would be a violation of Title VII of the Civil Rights Act of 1964. Today, most employers are conscious of this guidance: they still run background checks but consider past convictions on a case-by-case basis. If a candidate has a misdemeanor or felony conviction that is years old or not relevant to the position at hand, the employer may not have grounds to disqualify the candidate based on that information. Employers that do disqualify candidates based on any sign of criminal history risk legal action from the EEOC.

In Texas, the EEOC is at least temporarily barred from enforcing its 2012 guidance. After the guidance was initially issued, the State of Texas sued the EEOC, claiming the agency was overreaching. The state wanted a court to rule it could enforce its laws and policies as it wished, including categorical employment bans on felons for certain jobs. The State of Texas argued the EEOC had failed to comply with the Administrative Procedure Act, which holds that new, “substantive” rules or regulations cannot be issued or enforced without notice or opportunity for comment.

A U.S. District judge handed down a split decision on the case. On the one hand, the judge denied Texas’s claim the state has the right to implement systems that absolutely bar candidates with felony histories. “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 in certain positions,” the court’s ruling read.

On the other hand, the judge ruled the EEOC had violated the APA by issuing a substantive rule without proper notice or period for comment. As such, the EEOC will not be permitted to enforce this guidance in Texas until it has “complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.”

What does this ruling mean for employers in Texas? Employers should continue operating as if the EEOC guidance is in effect. Employers are free to conduct background checks on their candidates if they comply with Fair Credit Reporting Act requirements and any relevant ban the box legislation in their area. However, since the EEOC will likely go about complying with APA requirements immediately, it is only a matter of time before this guidance is enforced in Texas once more.

At, we can provide criminal history checks at the countystate, and federal levels. We also maintain a multijurisdictional database to help you expand the reach of your screening process. All our background check reports include details about charges, filing dates, and degrees of offense. You can use these details to judge criminal histories on a case-by-case basis to fully comply with EEOC guidance.



Tag Cloud
Recent Posts

Latest News

  • March 20 Employers who use E-Verify must follow the proper steps and procedures when they receive a “tentative non-confirmation notice” from either the Social Security Administration or Department of Homeland Security. Failure to follow the proper procedures can cost employers both time and money. 
  • March 20

    Four Department of Commerce employees are out after their background checks resulted in security clearance denials. All four had worked high-ranking positions for months despite incomplete background checks.

  • March 15 As more states legalize the recreational use of cannabis, they contend with the emergence of new industries surrounding marijuana cultivation and production. 
  • March 14 In most cases, it is easy to determine where an issue might show up on a pre-employment background check. Citations for traffic violations or reckless driving charges will appear on a motor vehicle record check. Verdicts in a civil court case will show on a civil court background check. And criminal convictions—from petty theft to violent felonies—show up on criminal background checks.
  • March 13 How many years back do employment background checks go? This question can have multiple different answers depending on the situation.
  • March 13 A new bill in Florida would require landlords of apartment complexes to present tenants with verifications of employee background checks to give them peace of mind the people working in and around their homes are trustworthy.
  • March 08 Police officers working with the University of Texas at Arlington recently arrested a man who had avoided police capture on a warrant out of Oregon for nearly two decades. The man, whose real name is Daniel Charles Ray Hanson, spent those 17 years using a variety of fake names and identification documents to move around the country, often engaging with educational institutions under false pretenses. Police say Hanson regularly went by at least three different aliases. He sports a rap sheet that stretches back to an arson conviction in 1995. 
  • March 07

    The Future of EEOC Guidance in Texas Is Up in the Air

    The EEOC issued guidance in 2012 warning employers about the dangers of enforcing categorical policies to bar candidates with criminal histories. That guidance is not enforceable in Texas thanks to a recent court ruling.

  • March 05 Vermont is the latest state to restrict employers’ access to and use of social media accounts of employees and applicants. 
  • March 01 In an age of "industry disruptors" turning established business models on their heads, companies such as Uber and Lyft rely on a unique workforce of individuals outside the traditional employer-employee context. Uber calls them "partners" while other businesses refer to them as "independent contractors," the official classification these individuals use for tax purposes. Recently, the National Labor Relations Board (NLRB) revealed they had warned a business, Postmates, for misclassifying their staff as independent contractors. In the NLRB's determination, these individuals were employees.