The U.S. Court of Appeals for the Fifth Circuit ruled recently that the Equal Employment Opportunity Commission (EEOC) exceeded its authority under Title VII of the Civil Rights Act when it promulgated its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.

The ruling comes in a lawsuit brought in federal court by the state of Texas alleging that the 2012 guidance was in fact a binding rule, and that the agency had failed to go through formal notice-and-comment rulemaking as required by the federal Administrative Procedure Act (APA). The trial court agreed and ruled for the state, and the EEOC appealed.

From a practical standpoint, although the decision is a loss for the EEOC, the ruling is not likely to have a significant impact on how the agency evaluates criminal history background checks in the context of Title VII. Nothing in the Fifth Circuit’s ruling prevents the EEOC from enforcing Title VII in the manner it believes the law should be interpreted, and the practices most likely to satisfy an EEOC charge investigation are those outlined in the agency’s Guidance.

A copy of the Fifth Circuit’s opinion in Texas v. EEOC, No. 18-10638 (5th Cir. August 6, 2019), is available online.

Members of the Center for Workplace Compliance (CWC) can read more here.