Judge Tosses Texas Lawsuit Against EEOC on Criminal Background Checks

Nick Fishman

Judge: Texas Can't Sue EEOC for Criminal Background Check Guidance

Yesterday, a federal judge ruled that the state of Texas cannot challenge the U.S. Equal Employment Opportunity Commission’s (EEOC) guidance on criminal background checks because the state is not presently at risk of being penalized for refusing to adopt the policy. You might recall that this suit was filed last November by Texas Attorney General Greg Abbott filed a legal action which challenged the Equal Employment Opportunity Commission (EEOC) “enforcement guidance” that limits the use of criminal records during the hiring process.  

Those who conduct employment background checks should read on to learn why this case was so important, but why you shouldn’t despair over the ruling.

The suit claimed that EEOC guidelines unlawfully limit the ability of employers – including the State of Texas and its agencies–from excluding convicted felons from employment. The complaint challenged the Commission’s statutory authority under Title VII to improperly “bully” the State and its agencies at the expense of the safety of Texans. As my colleague Angela Preston highlighted last November, the compliant asked the federal court for the following relief:

  • A declaratory judgment that the State of Texas and its agencies are entitled to maintain and enforce state laws and policies that absolutely bar convicted felons – or a certain category of convicted felons – from government employment;
  • A declaration that the EEOC cannot enforce its guidelines against the State of Texas – and an injunction that bars the EEOC from issuing right-to-sue letters to persons seeking to pursue this type of discrimination charge against the State of Texas or any of its agencies;
  • a judgment holding unlawful and setting aside the EEOC’s hiring guidelines.

This suit was the first, and so far only direct challenge to the EEOC’s controversial criminal background check enforcement guidance, which went into effect in April, 2012. 

While the case wasn’t able to move forward, the ruling didn’t even address the legality of the guidance.  The judge simply said that the state couldn’t challenge the EEOC unless they were at risk of facing penalty for not complying with it.  Unfortunately, it looks like we’re going to have to wait for insight from the courts until an entity (private or public employer) has been sued for alleged non-compliance.     

I might be wrong about this, but I don’t see EEOC poking the bear by going after a state for non-compliance.  States tend to have the resources and political will to see these things through.  My guess is that they will continue to go after private employers who could spend millions fighting the allegations but might not have the will or resource to challenge the constitutionality of the guidance.

 

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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