The U.S. District Court for the Northern District of Texas has enjoined the Equal Employment Opportunity Commission (EEOC) from enforcing its guidance on background checks against Texas.  The guidance, Texas argued, directly interferes with the state’s authority to impose bans on hiring felons and to be able to discretionarily reject felons for certain jobs.  The EEOC has asserted that the burden is on the employer to show an absence of disparate impact in the context of these hiring decisions, given that certain racial classes are alleged to be disproportionately impacted by consideration of felony convictions as a barrier to employment.  The Court did state in its order that a categorical denial of employment to all job applicants convicted of a prior felony “paints with too broad a brush.” But, ultimately, the Court enjoined the EEOC from enforcing its guidance against Texas until the EEOC has complied with the notice and comment requirements under the Administrative Procedures Act for promulgating a substantive rule.

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