EEOC's Limitations on Criminal Background Checks Blocked in Texas
Author: David B. Weisenfeld, XpertHR Legal Editor
February 16, 2018
A federal judge has blocked the Equal Employment Opportunity Commission (EEOC) from enforcing an Obama-era rule in Texas that advised employers to use criminal background checks only when they are job-related or tied to legitimate business needs.
In a 2012 Enforcement Guidance about the use of arrest and conviction records in employment decisions, the EEOC stated that employers should engage in an individualized assessment before rejecting job applicants based on their criminal history.
Texas sued the EEOC, claiming that the agency overreached its legal authority and unfairly restricted the ability of employers, including the state of Texas and its agencies, from being able to exclude convicted felons from certain jobs.
US District Judge Sam Cummings in the Northern District of Texas agreed in part that the EEOC's Guidance may not be enforced in the Lone Star state. Judge Cummings found that the EEOC issued its Guidance without notice and the opportunity for comment.
In a statement praising the ruling, Texas Attorney General Ken Paxton said the EEOC's guidelines warned that it would investigate employers like Texas that use felony convictions to disqualify employment. He also claimed that the EEOC encouraged disqualified applicants to file discrimination lawsuits for perceived violations.
The court's ruling was not a total win for Texas. For instance, Judge Cummings wrote that a 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." He also rejected Texas' request to stop the EEOC from issuing right-to-sue letters.
The EEOC had argued that the only purpose of the Guidance was to update and consolidate all of its prior policy statements about Title VII and the use of criminal records in employment decisions. The agency also noted that the Guidance had never been enforced against Texas. In light of the administration change since the EEOC released its Guidance, it remains to be seen whether the federal government will appeal the ruling.
The City of Austin restricts private employers in the hiring process by prohibiting both criminal history inquiries and background checks until after an employer makes a conditional job offer. However, Texas state law has no such prohibition for either public or private employers.