Arguing that criminal background checks may have a disparate impact on certain races and national origins, over the last few years many states and localities have confronted a “ban the box” trend spreading across the nation. In a legal fight against the EEOC, Texas has taken a stand against the trend.
In April 2012, the EEOC issued guidance urging businesses to avoid a blanket rule against hiring individuals with criminal convictions because doing so could violate Title VII if it results in a disparate impact. Like several other states, Texas has enacted legislation prohibiting the hiring of felons for certain job categories. Concerned about the potential impact of the EEOC’s guidance on its ability to enforce these state laws, and preserve the integrity of its concern about felons working certain jobs, in response the State of Texas sued in November 2013 to enjoin the EEOC from enforcing its guidance.
On procedural grounds, the district court dismissed the state’s suit in August 2014. See State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014). According to the district court, there was a lack of subject matter jurisdiction because there was no allegation that the EEOC’s guidance had been enforced in Texas. The fact that the EEOC had issued a right-to-sue letter to an individual alleging discrimination based on a criminal background check showing a prior felony conviction was not, according to the court, sufficient to establish jurisdiction.
Texas appealed to the Fifth Circuit and the parties have submitted their briefs to the appellate court. With the State of Texas’ recent submission of its reply brief, all briefing is complete and the parties are awaiting scheduling of oral arguments. With the EEOC’s aggressive approach to litigating criminal background checks, employers in Texas should keep an eye on how the Fifth Circuit resolves this challenge.
State of Texas v. EEOC, No. 14-10949 (5th Cir.)