In 2012, the Equal Employment Opportunity Commission issued an Enforcement Guidance stating when employers’ use of criminal background checks to exclude applicants from jobs violates Title VII. The Guidance states the EEOC’s position that employers cannot maintain blanket policies that exclude persons from employment on the basis of a prior criminal conviction. The EEOC believes that such policies have a disparate impact against minority and male applicants, who are convicted of crimes in higher proportions than their general presence in the U.S. population.

Instead, the Guidance states that employers should conduct an individual analysis of the applicant’s criminal history, only excluding such persons from work based on factors such as the age of the conviction, and the relationship between the crime committed and the job itself. The Texas Attorney General filed suit seeking to declare the Enforcement Guidance an improper expansion of the EEOC’s legislative and regulatory authority. Texas maintains that felony convictions should automatically exclude applicants from certain jobs within state government.

The district court dismissed the lawsuit on procedural grounds, finding that Texas lacked legal standing to sue, and that there was no actual case or controversy to be litigated at that point. In a 2-1 decision, the Fifth Circuit disagreed, remanding the suit to the district court for further proceedings. The court rejected the EEOC’s argument that the Guidance is nothing more than a statement of the agency’s enforcement position based on existing law. This decision means that the EEOC will be required to substantiate its legal basis for the Enforcement Guidance. If ultimately rejected by federal courts, the EEOC would be faced with a need to obtain additional legislative or regulatory authority in order to broadly prohibit employers from imposing automatic criminal background exclusions.