The fight rages on with regard to the EEOC's position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state's lawsuit. The state's lawsuit was based on the EEOC's “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas' state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.
It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state's legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.