On February 1, 2018, a federal court judge issued a split decision in Texas v. the Equal Employment Opportunity Commission (EEOC) regarding enforcement of the EEOC’s 2012 guidance on background checks. The guidance warns that employers’ use of criminal history records in applicant screening may violate Title VII if it has a disparate impact on a protected class such as race, color, national origin, sex, or religion. The guidance also suggests best practices for employers, such as ensuring that the crime is job-related for the position in question and considering the amount of time passed since the crime was committed. The state of Texas sued the EEOC over the guidance on two counts.
The first count sought 1) a declaration that Texas has a right to absolutely bar convicted felons (or certain categories of convicted felons) from serving in any job it deems appropriate; and 2) an injunction preventing the EEOC from enforcing the guidance, including issuing right-to-sue letters on that basis. The judge denied Texas’s motion for summary judgment on this count, and in doing so stated that categorically denying employment to all applicants convicted of a prior felony is too broad and denies meaningful opportunities to many who could benefit greatly from such employment in certain positions.
The second count sought to hold the guidance unlawful under the Administrative Procedures Act (APA), which requires substantive rules be issued with notice and opportunity for comment. The judge granted summary judgment in favor of Texas on this argument. The EEOC cannot enforce the guidance against Texas until it has complied with the notice and comment requirements of the APA for a substantive rule. It remains to be seen whether additional states will seek an injunction against enforcement.
By Kristen Pryor, Associate Principal Consultant, and Sarah Gilbert, Senior Consultant at DCI Consulting Group
