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EEOC's Criminal Background Check Guidance Meets Texas

In 2012, the Equal Employment Opportunity Commission (EEOC) created guidance for employers on the issue of felony convictions in hiring. Employers were given a framework by which they could determine whether their hiring policies screen out Title VII protected groups and whether a particular policy was consistent with a business necessity.

Texas sued the EEOC to obtain declaratory and injunctive relief. Some of Texas’ agencies have a blanket rule against hiring convicted felons, felons convicted of particular categories of felonies and individuals convicted of certain misdemeanors. Texas argued that the EEOC’s guidance “directly interferes with its authority to impose categorical bans on hiring felons and to be able to discretionarily reject felons for certain jobs.” Texas asked the court to declare that it was entitled to impose an absolute bar on the hiring of convicted felons. The state wanted an injunction to stop the EEOC from enforcing its criminal background guidance. Lastly, Texas argued that the EEOC’s rule on this issue was binding rulemaking in violation of the Administrative Procedures Act (APA). The APA requires that agencies follow certain protocols before imposing new rules which the EEOC did not heed.

The federal district court ruling on the matter would not grant Texas the right to an absolute bar in the hiring of felons. While the court agreed that there may be certain jobs where a specific criminal history could be a problem, the court also believed there might be times when individuals with a criminal history pose no reasonable risk. Texas’ request that the EEOC not be permitted to issue right to sue letters for applicants denied employment based on criminal history was similarly rejected. However, the court did agree with Texas that the enforcement guidance was substantive rulemaking. Thus, the EEOC was barred from enforcing the guidance against the State of Texas until it complied with the APA’s notice and comment rulemaking requirements.