Can the EEOC require a Texas state agency to delete records from an employee's personnel file?

Texas AG Opinion DM-0040: The EEOC Cannot Order a Texas Agency to Delete Personnel Records Against State Law

Plain-English summary

The Texas Department of Human Services asked whether federal law requires it to delete certain information from personnel files when it settles a discrimination claim with the federal Equal Employment Opportunity Commission. The EEOC's compliance manual, in setting out remedies for conciliation agreements, lists expunging adverse materials about an unlawful employment practice from the affected employee's personnel file as an appropriate step.

The Attorney General concluded that the EEOC cannot require this in a way that breaks state law. The EEOC's role under Title VII is to investigate and try to resolve discrimination claims through voluntary conciliation, not to adjudicate claims or impose sanctions; responsibility for enforcing the act is vested in the federal courts. Drawing on an earlier opinion, JM-830 (1987), the opinion explained that no provision of the federal act authorizes the EEOC to order a state agency to seal personnel records, and the commission has no power to make a state agency ignore a statute like the Texas Open Records Act. The same logic applies to deletion: if the EEOC cannot require records to be sealed, it cannot require them to be deleted in contravention of state law.

The opinion did not leave the agency without options. It pointed to section 5 of the Open Records Act and section 441.035(e) of the Government Code, which let a state agency destroy certain records, after the records lose their legal, administrative, or historical value, by applying to the director and librarian of the State Library and Archives Commission. Through that process, an agency could set up a retention policy for the disputed portions of a personnel file that provides for destruction upon settlement, which would let the agency include record expungement as a remedy in a voluntary EEOC settlement while staying within state law. The opinion encouraged the department's staff to contact the State Library and Archives Commission.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Texas Open Records Act (then V.T.C.S. article 6252-17a) has since been recodified as the Public Information Act in chapter 552 of the Government Code, and the records-retention provisions have been amended. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Can the EEOC make a Texas agency erase records from a personnel file?
Under this opinion, no, not in violation of state law. The EEOC works by voluntary conciliation and has no power to order a state agency to seal or delete records or to override the Open Records Act.

Is there any lawful way to expunge the records then?
Possibly. The opinion suggested that the State Library record-destruction process under Government Code section 441.035(e), combined with a retention policy that calls for destroying the disputed records on settlement, could let an agency offer expungement in a voluntary EEOC settlement without breaking state law.

Why doesn't the EEOC have this power?
Because, as the opinion explained, the EEOC's job is to investigate and conciliate, not to adjudicate or impose sanctions. Enforcement of Title VII is left to the federal courts, so the commission cannot compel a state agency to ignore a state statute.

Background and statutory framework

The EEOC has authority under Title VII of the Civil Rights Act of 1964 to investigate and attempt to resolve discrimination claims by informal conciliation (42 U.S.C. sections 2000e-4(g), 2000e-5). Its compliance manual policy statement on remedies, approved in 1985, lists corrective action and, as a component, expunging adverse materials about the unlawful practice from the employee's personnel file. Against that, the opinion set Texas record law: section 12 of the Texas Open Records Act (V.T.C.S. article 6252-17a) makes willful destruction, mutilation, unauthorized removal, or alteration of public records a misdemeanor; section 5(a) makes the records officer responsible for protecting records and gives the governmental body discretion over retention subject to state destruction laws; and section 3 generally requires public records to be available unless an exception in section 3(a) applies. Government Code section 441.035(e) lets a department head, with the approval of the director and librarian of the State Library and Archives Commission, destroy a state record that has no further legal, administrative, or historical value after filing an application describing it. The opinion relied on Attorney General Opinion JM-830 (1987), which had held the EEOC lacks authority to order state agencies to seal personnel records, and quoted that opinion's citation to Sears, Roebuck & Co. v. Equal Employment Opportunity Commission for the point that the commission cannot issue binding substantive rules.

Citations

Statutory provisions:

• 42 U.S.C. §§ 2000e-4(g), 2000e-5 (EEOC investigation and conciliation under Title VII)
• Texas Open Records Act, V.T.C.S. article 6252-17a, §§ 3, 3(a), 5(a), 12 (public access; record protection; penalty for destruction)
• Government Code § 441.035(e) (destruction of state records with State Library approval)

Cases:

• Sears, Roebuck & Co. v. Equal Employment Opportunity Commission, 435 F. Supp. 751, 761 (D.D.C. 1977)

Prior Attorney General opinion referenced: JM-830 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0040
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0040.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

September 12, 1991

Honorable Burton F. Raiford
Interim Commissioner
Texas Department of Human Services
P.O. Box 149030
Austin, Texas 78714-9030

Opinion No. DM-40

Re: Whether federal law authorizes a federal agency to require the Department of Human Services to delete certain information from personnel files (RQ-2152)

Dear Commissioner Raiford:

Your predecessor in office sought the opinion of this office as to whether federal law requires the deletion of certain information from personnel files. Specifically, your predecessor asked whether the authority given the federal Equal Employment Opportunity Commission (EEOC) in title 42, section 2000e-5 of the United States Code and further explained in the policies and conciliation standards of the EEOC is paramount federal law that requires the Department of Human Services to delete information from personnel files in settlement agreements with the EEOC.

The EEOC has authority to investigate and attempt to resolve discrimination claims under title VII of the Civil Rights Act of 1964, by informal methods of conciliation. 42 U.S.C. §§ 2000e-4(g), 2000e-5. In the EEOC Compliance Manual, containing the policy statement on remedies and relief for individual cases of unlawful discrimination, approved February 5, 1985, the EEOC enumerates elements which all conciliation agreements should contain in appropriate circumstances.[1] Among these elements of relief the EEOC includes:

(2) A requirement that corrective, curative or preventive action be taken, or measures adopted, to ensure that similar found or conciliated violations of the law will not recur.

EEOC Compl. Man. (CCH) at 1. As a component of this element the EEOC policy statement further provides:

In addition, the respondent must be required to take all other appropriate steps to eradicate the discrimination and its effects, such as the expunging of adverse materials relating to the unlawful employment practice from the discriminatee's personnel files.

Id. at 2. The term "deletion" in the context of your question implies that the record is to be destroyed or otherwise permanently removed from the governmental body's custody. Section 12 of the Texas Open Records Act, V.T.C.S. article 6252-17a, provides, in part:

Any person who willfully destroys, mutilates, removes without permission as provided herein, or alters public records shall be guilty of a misdemeanor . . . .

Section 5(a) of the Open Records Act provides, in pertinent part:

It shall be the duty of the officer for public records, subject to penalties provided in this Act, to see that the public records are made available for public inspection and copying; that the records are carefully protected from deterioration, alteration, mutilation, loss, or unlawful removal; and that public records are repaired, renovated, or rebound when necessary to maintain them properly. When records are no longer currently in use, it shall be within the discretion of the governmental body . . . to determine a period of time for which said records will be preserved subject to state laws governing the destruction and other disposition of state and local government records.

Section 441.035 of the Government Code provides, in part:

(e) With the approval of the director and librarian [of the State Library and Archives Commission], in accordance with this section, the head of any department or institution may destroy any state record in the custody of the head of the department or institution that, in the opinion of the head of the department or institution, does not have any further legal, administrative, or historical value. Before destroying the state record, the head of the department or institution must file an application to do so with the director and librarian that describes the original purpose and the contents of the state record.

In Attorney General Opinion JM-830 (1987), this office considered, among other things, whether a state agency could seal personnel records subject to the EEOC's authority to resolve complaints through conciliation. That opinion concluded that

[n]either this provision [section 2000e-5] nor any other provision of the federal act expressly authorizes the EEOC to order state agencies to seal personnel records. This power is beyond the commission's authority to approve the voluntary resolution of discrimination complaints. The EEOC lacks the authority to authorize or require a state agency to ignore a state statute such as the Open Records Act. The EEOC has no power to adjudicate claims or impose administrative sanctions. [Case citation garbled in scan; reported at 415 U.S., at 44.] Responsibility for the enforcement of the act is vested in the federal courts. Id. See Sears, Roebuck & Co. v. Equal Employment Opportunity Commission, 435 F. Supp. 751, 761 (D.D.C. 1977) (commission lacks authority to issue binding substantive rules).
. . . .

We have no doubt that expunction is an appropriate judicial remedy to afford relief under both the federal act and the state act. . . . As indicated, the federal commission lacks authority to adjudicate claims or impose administrative sanctions.

Attorney General Opinion JM-830 at 7 (emphasis in original).

While the above-quoted passage from Attorney General Opinion JM-830 discusses sealing information in personnel records rather than deleting it, it correctly analyzes the narrow issue presented in your predecessor's opinion request. As federal law does not authorize the EEOC to require that records be sealed,[2] neither does it authorize the EEOC to require the deletion of information from personnel files in contravention of state law. However, as Attorney General Opinion JM-830 discusses sealing records rather than deleting them, it does not discuss section 5 of the Open Records Act and section 441.035(e) of the Government Code. These provisions, which provide for the destruction of certain state records upon application to the director and librarian of the State Library and Archives Commission, may provide a mechanism for deletion of certain records in compliance with state law while permitting the inclusion of record expungement as a remedy in voluntary EEOC settlements. Under these provisions a state agency in consultation with the director and librarian could establish a retention policy for those portions of a personnel file subject to an EEOC dispute that provides for the destruction of such records upon settlement of the dispute. Accordingly, we would encourage your staff to contact the Texas State Library and Archives Commission.

SUMMARY

As federal law does not authorize the EEOC to require that records be sealed, neither does it authorize the EEOC to require the deletion of information from personnel files in contravention of state law.

Section 5 of the Open Records Act and section 441.035(e) of the Government Code, which provide for the destruction of certain state records upon application to the director and librarian of the State Archives and Library Commission, may provide a mechanism for deletion of certain records in compliance with state law while permitting the inclusion of record expungement as a remedy in voluntary EEOC settlements.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General

[1] These are not federal regulations adopted pursuant to statute, but statements of policy.

[2] The Texas Open Records Act, art. 6252-17a, V.T.C.S., provides for public access to records of governmental bodies, including state agencies. Section 3 of the Open Records Act provides that information is to be available for public inspection unless specifically excepted in subsection (a) of that section. Some of the exceptions enumerated in section 3(a) may coincidentally except some information which the EEOC may wish expunged in a settlement agreement. However, unless one of the exceptions in section 3(a) applies, information may not be withheld from public disclosure unless a court so orders.