Dive Brief:

• A federal district court has limited the enforceability of the U.S. Equal Employment Opportunity Commission's (EEOC) background check guidance, and the agency has pushed back, asking for more information.
• In a case challenging the agency'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 state of Texas argued that the commission was interfering with its authority to impose a ban on hiring felons. In a February 2018 order, the court denied much of the relief sought by the Lone Star State but also blocked EEOC from enforcing the guidance against the state, finding that it was a substantive rule that should have gone through notice-and-comment procedures. EEOC can't enforce the guidance against the state until it complies with those requirements.
• EEOC has now asked the court to clarify or reconsider the injunction. The court’s order “is not without some ambiguity,” the agency said, adding that it believes the injunction limits enforcement of the guidance but does not prohibit EEOC from enforcing Title VII’s disparate impact provisions with respect to criminal record exclusion challenges.

Dive Insight:

Although the injunction is specific to the state of Texas, the court’s order opens the door to similar lawsuits against the EEOC and is likely to push the EEOC to reconsider the guidance, Littler Mendelson attorneys Rod M. Fliegel and Molly Shah wrote in a blog post for the firm.

But despite these setbacks, EEOC is still pursuing lawsuits against employers concerning the use of criminal records for hiring and other employment purposes, the pair says.

For now, the guidance — which posits that an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate Title VII — remains in effect for other employers, but the issue bears watching.