In 2012, the EEOC adopted guidance stating that employers may not categorically exclude felons from hiring. On November 4, 2013, the State of Texas filed a lawsuit in the U.S. District Court for the Northern District of Texas under the Declaratory Judgment Act the Administrative Procedure Act against the EEOC. Represented by its Office of Attorney General, Texas sought declaratory and injunctive relief, alleging that the EEOC overstepped its authority under Title VII of the Civil Rights Act by issuing the guidance. Texas requested a declaratory judgment that the state and its agencies may legally impose a categorical ban on the hiring of criminals with no interference from the EEOC.

In January 2014, the EEOC filed a motion to dismiss, which the court granted on August 20, 2014. The district court dismissed the case for lack of subject matter jurisdiction: it did not have the discretion to review the allegations brought by Texas because the harms were merely speculative, especially considering that the EEOC could not bring an enforcement action on its own. 2014 WL 4782992. Texas appealed this decision on August 25, 2014.

On June 27, 2016, the Fifth Circuit Court of Appeals vacated the decision and remanded the case to the district court. The Court stated that Texas was the "object" of the enforcement and, thus, had standing to challenge it. Additionally, the Court noted the Supreme Court's recent decision in U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S.Ct. 1807 (2016) was relevant to this case: "an agency action can create legal consequences even when the action, in itself, is disassociated with the filing of an enforcement proceeding." In essence, the Court of Appeals held that the State of Texas, even if not subject to litigation as a result of the EEOC guidance, was still negatively affected by it and, thus, had standing to bring suit. Texas v. EEOC 832 F.3d 327.

However, on September 23, 2016, the Fifth Circuit withdrew its opinion and remanded the case to be considered by the District Court in light of Hawkes. On October 24, 2016, the EEOC moved to dismiss. The district court considered and denied the EEOC's motion and stated that the parties must file cross motions for summary judgment.

On September 14, 2017 both parties moved for summary judgment.

On February 1, 2018, the court granted in part and denied in part Texas' motion for summary judgment. The court decided that because the EEOC had not participated in the notice and comment period, the EEOC could not enforce the Guidance until it held a notice and comment period.

On May 25, 2018, the EEOC appealed the decision to the Fifth Circuit. Oral arguments have not yet been scheduled, but briefs have been filed. The case is still ongoing.

Jordan Rossen - 01/17/2014
Cianan Lesley - 02/24/2019


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