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

  • June 20 Repeat background checks are becoming more common, with companies in India leading the charge. What does this trend look like, and how can employers embrace it now to stay ahead of the curve?
  • June 19

    Every federal job involves a background check of some kind. These background checks and how they are evaluated vary based on job, department, and security clearance level.

  • June 18

  • June 14 Ban the box laws aim to improve opportunities for employment. Could they have the opposite effect instead?
  • June 13 Jacobs Petroleum Products is a regional petroleum company that operates throughout Pennsylvania, West Virginia, Ohio, and Maryland. Apart from their employees carrying much responsibility and have frequent contact with customers, the company’s hiring also tends to be segmented since individual store managers are responsible for hiring talent for their own stores. In this employment landscape, Jacobs Petroleum Products needed a reliable and effective way to screen its new hires for criminal infractions and other red flags.
  • June 12

    The University of Wisconsin System may tweak its hiring and reference check processes. The potential changes come after one of UW’s assistant deans was accused of sexual harassment.

  • June 07 Stories of abuse by coaches in youth sports leagues continue to crop up around the country, but rules and guidelines remain patchy and enforcement is often lacking. The struggle to implement an effective system continues nationwide.
  • June 07 Financial background checks, usually referred to as credit history checks, can be an effective way to find out if a candidate is fit to handle accounts, financial data, and other assets at your business.
  • June 06 The Society for Human Resource Management and the Charles Koch Institute recently commissioned a survey to find out how willing employers were to hire people with criminal records. The study indicates that managers, HR professionals, and employees themselves are becoming more comfortable with the idea of hiring and working with ex-offenders.
  • June 04 Are fingerprint background checks the gold standard for employee screening, or are they overhyped? We look at some of the myths and misconceptions surrounding these checks.