On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. While this ruling and its related injunction are limited on their face to the State of Texas, the decision opens the door to future challenges to the validity of the EEOC Guidance by other employers, in and outside the Fifth Circuit (Louisiana, Mississippi, and Texas).

Enforcement Guidance

Citing statistics showing that Hispanics and African Americans have arrest and incarceration rates “disproportionate to their representation in the general population,” the EEOC’s Guidance takes the position that the use of criminal history by an employer has a potentially adverse impact on applicants and employees in these groups. Thus, the Guidance says, an employer’s use of criminal history information subjects it to liability under Title VII unless the use of the information is job related and consistent with business necessity. Such a determination hinges on an employer’s use of various complex procedures detailed by the Guidance, including a targeted screen and individualized process. The Guidance prohibits the use of no-felony rules and the like.

Procedural History

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Tiffany Cox Stacy, Employment Attorney

SAHRMA President, 2019

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