Texas v EEOC: DOJ Weighs in on Technicalities

Briefly, the Department of Justice (DOJ) weighed in on the appeal to the State of Texas v. Equal Employment Opportunity Commission (EEOC) district court ruling from February. The main crux of the submitted brief re-asserts that Texas has no standing to bring the suit in the first place, as no challenge against any state has been brought on the basis of EEOC’s guidance on hiring applicants with a criminal conviction and the DOJ, would be responsible for enforcement based on Title VII, rather than EEOC’s guidance.

Digging in to the details:

Back in February, a federal district judge issued a split decision in the Texas v. EEOC case regarding EEOC’s 2012 guidance on background checks. (Related blog here). The judge ruled that Texas cannot categorically deny employment to all applicants convicted of a prior felony. But, the judge also ruled that EEOC cannot enforce its guidance document against Texas until it has complied with the notice and comment requirements of the Administrative Procedures Act (APA), ruling that the guidance qualifies as a “substantive” rule.

On September 5, 2018, the DOJ submitted a brief requesting oral argument on the appeal. In its brief, the DOJ re-raised the issues of whether Texas has Article III standing and whether EEOC’s background guidance is a final agency action (matters decided in a June 27, 2016 appeal decision that was withdrawn and vacated based on new Supreme Court guidance).  “This Court should reject Texas’s attempt to obtain pre-enforcement review of a non-binding policy guidance that imposes no legal obligations or consequences on Texas or any other employer.” In the arguments, the DOJ asserts that the DOJ, not EEOC, would be responsible for bringing an action against the state, and that EEOC lacks authority to issue substantive rules and regulations.

However, several civil rights organizations filed a separate brief decrying certain aspects of the DOJ’s argument. In particular, the brief several times mentions that the DOJ disagrees with numerous aspects of EEOC’s guidance in relation to the analysis of disparate impact claims. The DOJ calls out differences in interpretation regarding the “job-related and consistent with business necessity” defense and the relevance of national statistics on disparate impact in arrest and conviction rates when determining whether further investigation is warranted or a prima facie burden is met.


This is not an evaluation of the appropriateness of EEOC’s guidance surrounding criminal background checks. This is a technical case, centering on whether Texas has any standing to sue absent a specific challenge to its current processes and whether EEOC’s guidance is appropriately interpreted as a “substantive rule” under the APA. However, the DOJ’s brief indicates that it would likely take a different approach to investigating and challenging a criminal background claim than that presented in EEOC’s guidance.


By Kristen Pryor, M.S., Associate Principal Consultant at DCI Consulting Group

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