Texas Takes on the EEOC Over Limits to Background Checks

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Last week, Texas Attorney General Greg Abbott filed a legal action challenging the U.S. Equal Employment Opportunity Commission (EEOC) “enforcement guidance” that limits the use of criminal records during the hiring process.

Texas is a big state, with a big reputation, so it’s fitting that this case is a big deal. The suit hits hard, claiming that EEOC guidelines unlawfully limit the ability of employers – including the State of Texas and its agencies – from excluding convicted felons from employment.

The suit is the first direct challenge to the EEOC’s controversial criminal background enforcement guidance, which went into effect in April 2012. For those who follow EmployeeScreenIQ’s blog, the EEOC guidance on criminal background checks has been a frequent topic.

Interestingly, Texas was not one of the states that joined in the recent letter to the EEOC from nine (9) state Attorney’s General that protested the guidance. However, in a similar vein, the Texas complaint challenges the EEOC’s statutory authority under Title VII to improperly “bully” the State and its agencies at the expense of the safety of Texans.

Texas law vs. EEOC guidance

The suit points out that under Texas law, both state agencies and private employers are prohibited from hiring convicted felons or certain types of ex-offenders for jobs that require high levels of security and public trust. The persuasive argument is that the EEOC’s guidance is harmful, damaging to both the state and private employers who are required to conduct background checks under state and federal law.

As the state’s legal action explains:

If state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must begin evaluating and hiring felons to serve in law enforcement, teach in local elementary schools, nurse veterans and the disabled, counsel juvenile detainees, and coach little league.”

In the press conference, Texas Attorney General Abbott got political, saying this:

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Once again, the Obama Administration is overreaching its legal authority by trying to impose hiring rules on states that violate state sovereignty and – in this instance – endanger public safety. Texas has an obligation to enforce its absolute ban on hiring convicted felons for certain jobs, including state troopers, school teachers, and jailers.”

What Texas wants

The State of Texas is pushing back — taking issue with the EEOC’s approach of sue first and sort out later, which it says simply encourages disqualified applicants to file discrimination claims in situations where they are simply not qualified. Whether other states will jump into the fray remains to be seen.

The complaint itself asks the federal court for the following relief:

  • A declaratory judgment that the State of Texas and its agencies are entitled to maintain and enforce state laws and policies that absolutely bar convicted felons – or a certain category of convicted felons – from government employment;
  • A declaration that the EEOC cannot enforce its guidelines against the State of Texas – and an injunction that bars the EEOC from issuing right-to-sue letters to persons seeking to pursue this type of discrimination charge against the State of Texas or any of its agencies;
  • A judgment holding unlawful and setting aside the EEOC’s hiring guidelines.

I will be tracking this one closely — as will employers in Texas and across the U.S.

This was originally published on the EmployeeScreen IQ blog.

Angela Preston is senior vice president and counsel, corporate ethics and compliance for SterlingBackcheck.com. Angela has broad industry experience including more than 20 years as a licensed attorney and 12 years as a leader and expert in the background screening industry. She has extensive expertise in employment law, privacy law, EEO law, and the Fair Credit Reporting Act. Contact her at Angela.Preston@sterlingbackcheck.com.

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