Texas Challenges EEOC's Regulation On The Use Of Criminal Background Checks In The Employment Application Process


On November 4, 2013, the State of Texas filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) regarding the agency's April 2012 guidance on the use of criminal background checks in the employment application process. As previously reported, in April 2012, the EEOC issued sweeping guidance in which it took the position that while a criminal background check is not unlawful, an employer's use of criminal histories can be discriminatory in its "impact" on minorities and will result in liability for employers unless employers can show that they had a "business necessity" for rejecting an applicant based on the applicant's criminal past.  Essentially, the EEOC's guidance, as well as the agency's subsequent enforcement of such guidance, has resulted in a system in which employers should not create per se rules regarding the results of criminal background checks, but rather should weigh factors such as the nature and severity of the offense(s), the length of time between application and the offense(s), and the duties of the job sought. Texas' complaint, which was filed under the Administrative Procedure Act and Declaratory Judgment Act, seeks protection from what it believes is the EEOC's incorrect view of Title VII on the subject of criminal background checks.  According to the complaint, “[t]he state of Texas and its constituent agencies have the sovereign right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise."