A new brief was filed by the EEOC in Texas v. EEOC that makes one wonder why the EEOC continues to spend a lot of time and money investigating and suing over guidance that it says has no legal impact, creates no legal obligations, and causes no injury.
Texas v. EEOC, Texas is claiming that the EEOC’s criminal guidance interferes with state laws requiring criminal background checks and that the EEOC criminal history guidance violates the APA. Texas appealed to the 5th Circuit the district court’s dismissal of the suit. Last week, the EEOC filed its opposition brief to a brief filed by the state. In the brief, the Commission makes two interesting points. First, the EEOC argues that the criminal guidance is not subject to judicial review because “has no legal consequences, nor does it impose any obligations on Texas, its-state agencies, or other employers.” Second, the state does not have standing because it has not demonstrated that is has already, or will suffer any injury based on the criminal guidance. Texas v. EEOC, No. 14-10949, U.S.C.A. (5th Cir.), Brief for Appellees, 11-13.