Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On February 1, 2018, a federal judge enjoined the EEOC and U.S. Attorney General from enforcing against the State of Texas the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance”).1 The judge granted summary judgment for the State of Texas on the narrow basis of the EEOC’s issuance of the Guidance without providing notice to the public and an opportunity to comment, as required under the Administrative Procedures Act (APA). Although the injunction itself is specific to the State of Texas, the order opens the door to other similar lawsuits against the EEOC and is likely to push the EEOC to reconsider the Guidance.
EEOC Guidance and State of Texas Lawsuit
The Guidance sets forth the EEOC’s position that employers should carefully consider criminal records in making hiring decisions to avoid running afoul of Title VII. Among other requirements, the Guidance takes the position that in almost all circumstances, an employer must make an "individualized assessment" before disqualifying an individual for employment based on past criminal conduct.
In 2013, the State of Texas sued the EEOC and the U.S. Attorney General challenging the Guidance asserting the state’s right to refuse to hire convicted felons without further consideration. After years of wrangling over standing and other procedural issues, the parties ultimately moved for summary judgment in September 2017, which the district court granted in part to Texas.
The Summary Judgment Motion
In moving for summary judgment, Texas asked the district court to declare that Texas has an absolute right to bar convicted felons from working for the State or legislature in any manner. The district court declined to do so, acknowledging that, although felons would pose too great a risk for “many categories of employment,” there may be other positions where felons pose no objectively reasonable risk to the interests of Texas and its citizens such that Texas’s broad rule denies meaningful opportunities of employment. The court also denied Texas’s request for an injunction preventing the EEOC from issuing right-to-sue letters in charges alleging discrimination based on criminal history information since issuance of those letters is not a ruling on the merits by the EEOC.
In granting part of Texas’s summary judgment motion, the district court agreed with Texas that the Guidance did not comply with the APA requirements for promulgating substantive rules. Specifically, the district court agreed that the EEOC issued the Guidance – a substantive rule – without providing notice and the opportunity for comment. As such, the district court blocked the EEOC and the U.S. Attorney General from enforcing the guidance against the State of Texas until the EEOC complies with the APA’s notice and comment requirements for substantive rules. The court declined to rule on Texas’s arguments that the Guidance is also unlawful because it is outside the scope of statutory authority given to the EEOC and an unreasonable interpretation of Title VII, holding that such a ruling would be moot and premature.
Despite a slew of setbacks,2 the EEOC is continuing to press lawsuits against employers concerning the use of criminal records for hiring and other employment purposes.3 It remains to be seen how the EEOC will react to the ruling in Texas, including whether it will push the EEOC to reconsider the Guidance and issue anew for public comment. Meanwhile, employers throughout the U.S. should continue to monitor developments in this and related areas of the law, including and in particular developments related to the so-called “ban-the-box” laws4 and under the Fair Credit Reporting Act.5
1 See Rod M. Fliegel, Barry Hartstein, and Jennifer Mora, EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers, Littler Insight (Apr. 30, 2012).
2 See, e.g., Rod Fliegel and Jennifer Mora, Federal Court Dismisses EEOC Title VII Disparate Impact Suit Over Alleged Discriminatory Background Checks Without Trial, Littler Insight (Aug. 12, 2013); Sixth Circuit Upholds Dismissal of EEOC Suit Against Employer Screening Applicants Based on Credit History Information, Littler Insight (Apr. 17, 2014); EEOC Settles Background Check Litigation with BMW, But Also Faces Steep Attorneys’ Fees in Freeman Case, Littler Insight (Sept. 22, 2015).
3 See Rod Fliegel and Allen Lohse, The EEOC Continues to Press Litigation Under Title VII Concerning Employer Criminal Records Checks, Littler Insight (Dec. 21, 2017).
4 See, e.g., Rod Fliegel and Allen Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017); California Employers Are Subject to New Requirements When Using Criminal History, Littler Insight (Feb. 21, 2017); Rod M. Fliegel, Jennifer Mora and Allen Lohse, New Changes to Massachusetts Regulations on Criminal History Checks, Littler Insight (Apr. 26, 2017); Jennifer Mora and Stephen Fuchs, Proposed Regulations Issued by the New York City Commission on Human Rights Clarify and Expand the Citywide “Ban-the-Box” Law, Littler Insight (Feb. 25, 2016), among others.
5 See, e.g., Rod Fliegel, Alison Hightower, and Allen Lohse, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions, Littler Insight (Oct. 19, 2017); Rod Fliegel and Allen Lohse, Ninth Circuit Revisits Article III Standing For An Alleged FCRA Violation, Littler Insight (Aug. 15, 2017); Rod Fliegel, Ninth Circuit is the First Appellate Court to Rule on “Extraneous Text” in a FCRA Background Check Disclosure, Littler Insight (Jan. 25, 2017); Rod Fliegel, Weathering the Sea Change in Fair Credit Reporting Act Litigation in 2014, Littler Insight (Jan. 6, 2014); Rod Fliegel and William Simmons, The Swelling Tide of Fair Credit Reporting Act (FCRA) Class Actions: Practical Risk-Mitigating Measures for Employers, Littler Report (Aug. 1, 2014).