EEOC Lacked Authority To Issue Guidance Related To The Consideration Of Arrest And Conviction Records

Author:Ms Paula Graves Ardelean
Profession:Butler Snow LLP

On August 6, 2019, the Fifth Circuit Court of Appeals ruled that the Equal Employment Opportunity Commission ("EEOC") "overstepped its statutory authority" in issuing the "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII" ("Guidance"). State of Texas v. Equal Employment Opportunity Commission and Attorney General of the United States, No. 18-10638 (August 6, 2018). The 2012 Guidance, which was issued during President Obama's Administration, provides that employers should not automatically exclude convicted felons from employment, citing data suggesting that such a practice disproportionately impacts minorities. The Guidance limits consideration of an applicant's criminal conviction to circumstances which are "job-related and consistent with business necessity."

The State of Texas excludes applicants convicted of specified categories of felonies from many public jobs. When this practice was challenged by an individual rejected for a covered public job, Texas sued the EEOC and the Attorney General challenging the EEOC's authority to promulgate the Guidance. The Fifth Circuit ultimately agreed with the State of Texas and barred the EEOC and the Attorney General of the United States from enforcing the EEOC's interpretation of the Guidance against the State of Texas.

In a 27-page opinion, the Court conducted a thorough legal analysis of the issues presented by the State of Texas and the EEOC, as well as the authority granted to the EEOC by Congress in Title VII. Title VII provides that the EEOC may issue "procedural regulations," but it does not grant the EEOC authority to promulgate...

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