Don’t mess with Texas.

The Equal Employment Opportunity Commission (“EEOC”) usually forces employers who are subject to Title VII to play defense. The State of Texas, however, has upended that approach. On November 4, 2013, Texas filed a federal lawsuit that seeks to strike down the EEOC’s April 2012 Enforcement Guidance limiting employers’ use of criminal background checks in making employment decisions. The case, Texas v. EEOC, et al., Case No. 5:13-CV-00255, was filed in the U.S. District Court for the Northern District of Texas.

As we have previously discussed (see post 1, post 2, post 3, post 4, post 5, post 6), the April 2012 Enforcement Guidance has been the subject of multiple high-profile lawsuits, some of which have resulted in dismissal and even sanctions against the EEOC for abusive litigation tactics. Moreover, as we previously reported, Attorneys General from 9 states (not including Texas) challenged the Enforcement Guidance in a July 2013 letter to the EEOC’s Chair and Commissioners. Not easily dissuaded, the EEOC Chair responded to this letter in August 2013, reiterating the EEOC’s position that it has the authority to issue and enforce the Guidance in its role as a protector of Title VII rights.

The EEOC has taken the position that its Enforcement Guidance on criminal background checks applies to both public and private employers. In the case of public employers, the EEOC contends that state and local governments cannot impose uniform bans on the hiring of convicted felons unless these governments comply with the procedures described in the Enforcement Guidance.

Texas notes in its lawsuit that several Texas state statutes prohibit the hiring of convicted felons in certain positions (e.g., education, public safety, medicine) and that the EEOC has no right to interfere in the state’s judgment as to when convicted felons should be barred from holding certain jobs.

Texas’s lawsuit goes a step further as well, seeking to invalidate the EEOC’s Enforcement Guidance as to all employers, both public and private. The lawsuit claims that Congress denied the EEOC the authority to issue substantive rules interpreting Title VII and that the EEOC’s Enforcement Guidance is therefore nonbinding.

Specifically, Texas requests in its Complaint that the federal court:

  1. Declare that Texas has the right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories of convicted felons) from serving in various State roles, and that the absolute bar does not constitute an “unlawful employment practice” under Title VII;
  2. Enjoin the EEOC from enforcing the Enforcement Guidance or issuing any right-to-sue letters permitting charging parties to file suit based on the Enforcement Guidance;
  3. Hold unlawful and set aside the Enforcement Guidance on the ground that the EEOC has exceeded its statutory rulemaking authority, which Congress specifically chose to withhold; and
  4. Declare that disparate impact liability under Title VII represents an impermissible exercise of Congress’s enforcement powers under the Fourteenth Amendment and, thus, the Enforcement Guidance is an impermissible exercise of the EEOC’s powers under the Fourteenth Amendment.


Even if the Texas lawsuit is successful at the district court level, the EEOC will not go quietly. An appeal to the Fifth Circuit (covering Texas, Mississippi, and Louisiana) would be certain to follow, and there is no way to predict whether the other circuit courts of appeal (covering the other 47 states and D.C.) would fall in line.

In essence, this lawsuit represents a potentially significant challenge to the EEOC’s authority on this issue, but nothing is likely to change in the near term. Employers have a vested interest in the outcome of this case, but it is a long-term interest.

For now, employers should continue to evaluate their background check and hiring policies and should continue to follow the EEOC’s Enforcement Guidance.

BakerHostetler attorneys will continue to monitor this lawsuit and the issues surrounding the Enforcement Guidance.