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