Tuesday, November 5, 2013

The State of Texas Files Suit Against the EEOC Challenging the EEOC's Recent Enforcement Guidance Related to the Use of Arrest and Conviction Records in Employment Decisions

Yesterday, in a clear expression of the "Don't Mess with Texas" mentality, the State of Texas filed suit against the Equal Employment Opportunity Commission (EEOC) challenging the EEOC's April 2012 Enforcement Guidance titled, "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964."  See State of Texas v. EEOC, Case No. 5:13-CV-00255-C, In the United States District Court for the Northern District of Texas, Lubbock Division.

According to the Guidance, which reflects the EEOC's interpretation of Title VII, hiring policies or practices that categorically exclude all convicted felons create an unlawful "disparate impact" under Title VII, and employers must conduct "individualized assessments" of convicted felons' job applications.  If an employer refuses to hire a convicted felon, the employer has the burden to prove the felony disqualification is "job related and consistent with business necessity."

The Guidance also provides that, if an employer's (including a state employer's) exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

Where's the beef?

Many Texas agencies, including the Department of Public Safety, the Department of Aging and Disability Services, General Land Office, Lottery Commission, Parks and Wildlife Department, and others, enforce absolute bans on the hiring of felons.

For this reason, the State of Texas takes issue with the EEOC's position, and the State seeks the following relief:  (1)  a declaratory judgment and injunction that the State's "No-Felons Policies" do not constitute "unlawful employment practices"; (2) a declaratory judgment that the EEOC's Guidance is unlawful (and not just the portion related to state laws) because the EEOC exceeded its statutory authority; and (3) a declaratory judgment that the EEOC's interpretation of Title VII cannot abrogate State sovereign immunity.

What are the implications?

They could be far-reaching if the Court determines the Guidance is in fact unlawful.  Texas recruiters and employers could, for example, impose strict bans on the hiring of felons, regardless of whether those bans are "job related and consistent with business necessity," and place more weight on arrest records in the hiring process.

More than likely, employers in other states would jump on the Texas wagon and urge their courts to take similar action against the EEOC's Guidance.  Stay tuned for updates on this important development.