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.



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