Last Monday, the U.S. Equal Employment Opportunity Commission (“EEOC”) asked  a federal judge to dismiss the State of Texas’ lawsuit challenging the EEOC’s guidance on the use of criminal background checks in the hiring process.

The EEOC guidance at issue, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” was released in April 2012.  It urges employers to use a case-by-case approach with respect to criminal background checks, suggesting that blanket hiring exclusions based on criminal arrests or convictions could create disparate impact by race or national origin, in violation of Title VII.

In November 2013, Texas filed a lawsuit challenging this guidance, claiming that it unlawfully limits the ability of employers to exclude convicted felons from employment.

The EEOC has now moved to dismiss Texas’ lawsuit, contending that the Administrative Procedure Act limits courts to reviewing final agency actions and that that the EEOC’s guidance is not a final agency action.  It also argues that Texas lacks standing because the state has not sustained an existing or imminent injury that it will suffer from the EEOC’s guidance.  The EEOC argues that Texas’ alleged injury is “illusory.”

Though the enforcement guidance is not binding on employers, it highlights the potential issues associated with adopting one-size-fits-all approaches to hiring.  The outcome of this case may ultimately affect how employers may treat criminal background checks during the hiring process.