EEOC Benchslapped for Umpteenth Time on Criminal Background Checks

By John Alan Doran

In a case with a truly byzantine court history, Texas v. EEOC, Texas has once again prevailed in striking down the EEOC’s “guidance” on employer use of arrest and conviction records.

Way back in 2012, the EEOC issued “guidance” making it extremely hard for employers to categorically exclude candidates based on criminal arrest or conviction records.  Among other things, the “guidance” required employers to exclude candidates only when the specific criminal conduct involved for a specific candidate creates risks inherent in that candidate’s particular position. 

The EEOC did not follow the strictures of the Administrative Procedure Act in formulating this “guidance”, but simply imposed it by administrative fiat.  This piqued the great State of Texas, since its laws provide for the blanket exclusion of felons in certain agencies and school systems.  To make a long procedural story short, the case effectively went up on appeal to the Fifth Circuit three times.  In this latest appeal, the Fifth Circuit devoted the vast majority of its opinion to constitutional standing and jurisdiction.  But, with a mere three pages of the 27-page opinion remaining, the Court concluded that the EEOC overstepped its authority when it adopted the “guidance” and circumvented the Administrative Procedures Act. 

This decision should help employers challenge the “guidance” in other settings.  While the decision involved only the State of Texas, the Fifth Circuit’s rationale under the Administrative Procedure Act should resonate with respect to other public and private employers.  Having blogged on this case ad nauseum, and having repeatedly railed against agencies such as the EEOC for circumventing the Administrative Procedure Act through unofficial “guidance”, we really, really hope this case will serve as a deterrent to agencies that attempt similar “guidance” end-runs around that Act in the future. 

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