In Articles


By:  David Burkhouse, Esquire

Employers visiting the EEOC’s website to obtain information regarding employment practices often encounter agency guidance documents. Many employers understandably assume EEOC guidance simply contains a summary of applicable legal requirements. However, employers should be aware EEOC guidance often contains additional restrictions and requirements which are neither mandated by the EEOC’s formally adopted regulations nor the underlying statutes that EEOC has been charged with enforcing.

When EEOC’s guidance exceeds, or is contrary to existing regulations and statutory law, courts may either refuse to enforce the requirements set out in the EEOC’s guidance or issue an injunction precluding agency enforcement. Just that occurred recently when, the Fifth Circuit Court of Appeals ruled that a 2012 EEOC guidance restricting the use of criminal background checks in hiring exceeded the requirements of Title VII of the Civil Rights Act of 1964. Texas v. Equal Employment Opportunity Commission, 2019 WL 3559629 (5th Cir. 2019). Specifically, the Fifth Circuit held that “[t]he Guidance, not Title VII, condemns Texas’s felon-hiring policies, and it, not Title VII, pressures Texas to change it laws.” The Fifth Circuit further found that because the EEOC’s guidance constitutes a substantive rule and EEOC does not have authority to promulgate substantive rules implementing Title VII, the guidance is unenforceable.

For this reason, employers should be careful in relying on informal agency guidance in determining whether employment practices are in compliance with state and federal legal requirements. If you have questions about the enforceability of state and federal agency guidance and its impact on your employment practices, Pessin Katz Law has experienced attorneys ready to guide you through what can be an understandably confusing landscape.


Mr. Burkhouse is a Member with PK Law and is part of the firm’s Education, Labor and Employment Group. As part of Mr. Burkhouse’s employment law practice he counsels and represents employers regarding employment discrimination claims arising under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Mr. Burkhouse also advises employers with regard to non-compete agreements, restrictive covenants, arbitration agreements, trade secrets, confidentiality agreements, and employee hiring and termination procedures.  Mr. Burkhouse can be reached at(410) 740-3150 or