Yesterday the Fifth Circuit benchslapped the EEOC in a case involving the agency’s criminal history “guidance.” State of Texas v. EEOC, No. 14-10949 (5th Cir. June 27, 2016).  We previously blogged about the State of Texas’ lawsuit challenging the EEOC’s “Enforcement Guidance” on criminal background hiring exclusions. As the lawsuit explained, the EEOC’s “guidance” directly affected Texas with respect to its hiring practices, which included blanket hiring exclusions for felony convicts in some instances. In defense of that lawsuit, the EEOC claimed that Texas could not bring the lawsuit because “guidance” did not harm Texas and the “guidance” didn’t really have the force of law.  What?

The Fifth Circuit rejected the EEOC’s arguments, concluding that the State of Texas has standing to bring suit to enjoin the EEOC’s “guidance.” The court found that Texas is currently experiencing direct harm under the “guidance” because the “guidance” imposes additional regulatory burdens on Texas to comply with its dictates and further forces Texas to conduct an agency-by-agency analysis of its criminal background exclusion.  And, although the “guidance” is not “final” in the sense of an actual agency rule, the court held that the EEOC doesn’t get to have it both ways by issuing “guidance” that purports to bind all employers but shielding that “guidance” from judicial review by choosing not to adopt an actual formal agency rule.  And so, the case moves on to its merits, which we anxiously await.

So, you’re saying “Gee, John, why the ad nauseum quotes around the word “guidance”?”  Well, it’s because this court has recognized what we have been screaming about for ages—agencies such as the EEOC are trying to sidestep the Administrative Procedures Act by forgoing formal agency rules and issuing so-called “guidance” instead.  These declarations of “guidance” are, in fact, edicts and they should be subject to review by our courts.