Fifth Circuit Finds EEOC Overreached in Issuing Criminal Background Guidance

In Texas v. EEOC, the United States Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission exceeded its authority when it issued a guidance that limited criminal background checks in hiring. The ruling is a major blow to the EEOC and its ability to weigh in on the use of criminal background checks.

Under the guidance which addresses use of arrest and criminal conviction records in the hiring process employers must assess each applicant’s criminal record and evaluate the nature and gravity of the offense, the amount of time since the conviction and the relevance of the offense to the job being sought.

The State of Texas challenged the restriction, contending that the EEOC enacted the rule without first satisfying the Administrative Procedure Act’s (APA) notice-and-comment requirement. On appeal, the Fifth Circuit found that the EEOC overstepped its bounds and has no authority to make the Title VII interpretation. As such, the EEOC cannot enforce the criminal background check guidance. Read the decision here:

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Post By Barry Nixon (72 Posts)

W. Barry Nixon is the COO, the leading background screening information portal and online worldwide directory of professional background screening firms and Suppliers to the background screening industry. He co-authored the landmark book, Background Screening & Investigations: Managing Hiring Risk from the HR and Security Perspective. He also is the publisher of award winning newsletters, The Background Buzz and The Global Background Screener, and the author of the Background Checks column in PI Magazine.

In addition, Barry is a past recipient of the elite ‘Top 25 Influential People in Security’ by Security Magazine and past Co-Chair, International Committee for the National Association for Professional Background Screeners (NAPBS). He currently serves as a Global Ambassador for NAPBS.

You can contact Barry at 1-949-770-5264 or online at