The Equal Employment Opportunity Commission's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the "Updated Guidance"), which was issued over 1 1/2 years ago, has recently been challenged in a lawsuit brought by the state of Texas. In the Complaint, the state sued the EEOC, asking a federal district court to declare invalid the EEOC's Updated Guidance and to enjoin the EEOC from using its alleged misinterpretation of Title VII of the 1964 Civil Rights Act to challenge Texas's policy of not hiring convicted felons for many state jobs. See State of Texas v. EEOC, N.D. Tex., Case No. 5:13-CV-00255-C.

In the Complaint filed on Nov. 4, 2013 in the U.S. District Court for the Northern District of Texas, the state seeks relief under the Administrative Procedure Act and the Declaratory Judgment Act from what it believes is the EEOC's incorrect view of Title VII and the agency's litigation strategy of suing employers who conduct criminal background screens and reject applicants with prior convictions. Specifically, the state alleges that the "EEOC's Enforcement Guidance purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment … The 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." The state asks the court to enjoin the EEOC from enforcing its Updated Guidance or issuing right-to-sue letters to charging parties alleging Title VII violations based on the Updated Guidance.

By way of background, the EEOC has targeted certain industries and has begun filing lawsuits, challenging the employers' use of background checks, based on the EEOC's concern that such practices have a "disparate impact" on protected classes of employees under Title VII. The Texas lawsuit, challenging what is perceived by employers to be the EEOC's overly aggressive restriction on the use of criminal background records in the hiring process, will be followed closely by employers who believe that careful and appropriate use of criminal history information in the hiring and employment context is an important and legitimate business tool.