Written By ESR News Blog Editor Thomas Ahearn

On February 1, 2018, a U.S. District Court ruled in favor of Texas in a lawsuit challenging the guidance issued by the Equal Employment Opportunity Commission (EEOC) that limits the ability of employers – including the state of Texas and its agencies – from categorically excluding convicted felons from certain employment positions, according to a news release on the Attorney General of Texas website.

On April 25, 2012, the EEOC – the agency enforcing federal laws prohibiting employment discrimination – issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” to consolidate and update the EEOC’s guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII.

Under Texas law, certain state agencies are prohibited from employing convicted felons and have enacted policies that require criminal background checks to ensure convicted felons do not hold positions of public trust. The enforcement guidance adopted by the EEOC in 2012 prohibit the state and its agencies from categorically excluding convicted felons for certain jobs.

“Texas has the sovereign right to impose categorical bans on the hiring of criminals for such jobs as state troopers, school teachers and jailers, and the EEOC has no authority to say otherwise. Requiring Texas to issue badges and guns to felons is bad policy and unlawful,” Texas Attorney General Ken Paxton said in the news release, adding that EEOC guidance that preempts state law ignores real risks to public safety.

Texas filed a lawsuit against the EEOC and the U.S. Attorney General in 2013 arguing the guidance “directly interferes with its authority to impose categorical bans on hiring felons and to get able to discretionarily reject felons for certain jobs.” The court found the guidance is a substantive rule issued without notices and the opportunity for comment under the Administrative Procedures Act (APA).

According to the ruling by Senior U.S. District Judge Sam R. Cummings, the guidance “is a substantive rule issued without notice and the opportunity for comment.” The court also ruled the EEOC and the U.S. Attorney General may not enforce the EEOC’s interpretation of the guidance against the state of Texas until the EEOC has complied with the notice and comment requirements under the APA.

However, the court also declined to declare Texas has a right to maintain and enforce laws and policies that absolutely bar convicted felons, since “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.”

ESR Whitepaper on EEOC Guidance

Employment Screening Resources (ESR) – a leading global background check provider – offers a complimentary whitepaper entitled “Practical Steps Employers Can Take to Comply with the EEOC Criminal Record Guidance” to give “real world” examples and suggestions on what employers should do now to remain in compliance with EEOC Guidance while performing criminal background checks.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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