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Written By ESR News Blog Editor Thomas Ahearn

The U.S. Court of Appeals for the Fifth Circuit has ruled in Texas v. EEOC (No. 14-10949, 6/27/16) that the Lone Star state may challenge in court the U.S. Equal Employment Opportunity Commission (EEOC) enforcement guidance on the use of criminal background checks by employers, according to a report from Bloomberg BNA.

On April 25, 2012, the EEOC – the federal agency enforcing laws prohibiting employment discrimination – issued updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” available at

Bloomberg BNA reports the ruling found “a federal district court erred by dismissing the state’s lawsuit for lack of subject-matter jurisdiction” and “Texas as a state employer has standing because it is covered by the EEOC’s 2012 guidance and must alter its hiring policies or incur significant costs if the guidance were enforced against the state.”

The decision on the appeal to reverse the dismissal stated: Texas’s complaint seeks a declaration that an Enforcement Guidance document from the Equal Employment Opportunity Commission (“EEOC”) regarding the hiring of persons with criminal backgrounds violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06.

The appeals board ruling of June 27, 2016, also stated: Texas filed suit on November 4, 2013, and filed its amended complaint on March 14, 2014. The amended complaint seeks declaratory and injunctive relief, alleging that the Enforcement Guidance is, in effect, a binding substantive interpretation of Title VII and thus violates the APA.

Bloomberg BNA reports the latest decision in the case of Texas v. EEOC “clears the way for a potential district court ruling on whether the EEOC’s guidance exceeds the agency’s authority under Title VII of the 1964 Civil Rights Act.” The complete Bloomberg BNA report is available at

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. The EEOC enforces Title VII of the Civil Rights Act of 1964. The complete text of Title VII of the Civil Rights Act of 1964 is available at

ESR Helps Employers Comply with EEOC Guidance

Employment Screening Resources® (ESR), a global background check provider, offers EEOC resources, blogs about the EEOC, and the complimentary whitepaper ‘Practical Steps Employers Can Take to Comply with EEOC Criminal Record Guidance’ by ESR founder and CEO Attorney Lester Rosen. To learn more, visit

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