Employers use numerous tools to screen applicants and determine which one may be the best for the job including job applications, interviews, reference checks and criminal background checks. Criminal background checks can be highly useful for employers, and can legitimately weed out applicants who are not suitable for the position. Nevertheless, the Equal Employment Opportunity Commission (“EEOC”) has taken an aggressive stance in limiting their use under discrimination law. A federal court, however, just delivered a serious blow to the EEOC’s stance, which employers across the country can utilize in the defense of enforcement actions.

The EEOC Guidance Issued in 2012

In April of 2012, the EEOC issued new enforcement guidance on employers’ use of criminal background information under the federal discrimination laws through which it attempted to clarify when employers may (and may not) consider criminal background information, and how. U.S. Equal Employment Opportunity Commission, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (Apr. 25, 2012) (“EEOC Guidance”). As support for the new guidance, the EEOC claimed that studies show certain racial minorities have a higher incidence of criminal records than whites and, therefore, hiring decisions based upon criminal records can end up having a disparate impact upon those minorities (meaning a higher percentage of racial minorities will end up being rejected from such jobs when compared with whites). The EEOC Guidance generally states that employers may only consider criminal records in employment decisions if “job related and consistent with business necessity.” It also sets forth detailed requirements that employers develop a “targeted screen” and make an “individualized assessment” before using criminal background information in hiring decisions which look at the nature and seriousness of the crimes, the nature of the job position in question, and the length of time since the applicant’s conviction or incarceration.

Texas Sues and Obtains an Injunction Against the EEOC Guidance

The State of Texas, through its attorney general, sued the EEOC in a Texas federal court, contending the EEOC had exceeded its authority in issuing the EEOC Guidance. The district court ultimately agreed and issued a permanent injunction, enjoining the EEOC and the United States government from enforcing the EEOC Guidance against the “State of Texas.” On August 6, 2019, the Fifth Circuit Court of Appeals affirmed this injunction. The Fifth Circuit held that the EEOC had no authority to issue the EEOC Guidance under federal discrimination laws and, in addition that it improperly issued the Guidance without going through the notice and comment period agencies are required to follow under the Administrative Procedures Act before promulgating an enforceable, substantive rule.


Although the court’s injunction was limited to blocking enforcement of the EEOC Guidance against the State of Texas, other public and private employers across the country can essentially utilize the same arguments made by the state in that case. It remains to be seen what the EEOC will do in light of the injunction, such as whether it will withdraw the EEOC Guidance, revise it or start the process over, or take another approach.

As always, you should consult with legal counsel before making any decisions regarding your hiring practices. Please contact any of the attorneys in the Larkin Hoffman Employment Law Group for assistance.