EEOC felon-hiring guidelines threaten sovereignty, safety, Texas says

Equal Employment Opportunity Commission guidelines that say an employer cannot categorically ban the hiring of a convicted felon violate a state’s sovereign rights and threaten the safety of its citizens, a suit filed by the Texas attorney general says.

Attorney General Greg Abbott’s suit, filed in the U.S. District Court for the Northern District of Texas, says the state, which employs hundreds of thousands of people, should be able to abide by state laws that ban the hiring of convicted felons for some positions.

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“The state of Texas and its constituent agencies have the sovereign right to impose categorical bans on the hiring of criminals and the EEOC has no authority to say otherwise,” the complaint says.

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According to the EEOC, blanket use of criminal background checks violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. because it has a disparate impact on black job applicants.

The agency’s 2012 guidance tells employers how to use arrest and conviction records in the hiring process.  Employers should conduct “individualized assessments” of job applications, and if a person is not hired based on a felony record, the employer must show that the disqualification was “job-related” and “consistent with business necessity,” the EEOC says.

According to the Texas suit, state laws bar felons from holding certain jobs, including state troopers and other law enforcement positions.

The Texas Department of Aging and Disability Services bars hiring anyone with a criminal background, the Texas Lottery Commission does not hire someone who has been convicted in the last 10 years and school districts across the state ban the hiring of those convicted of certain felonies, the complaint says.

While the EEOC maintains that Title VII preempts such state laws, Abbott says that forcing the state to hire convicted felons threatens the its sovereign right to pass its own laws to protect its citizens.

“This would expose the entire state — including, in particular, its most vulnerable citizens — to a class of individuals who have a proven track record of disobeying the law,” the suit says.

The attorney general is seeking injunctive and declaratory relief to set aside the EEOC guidance, prevent the agency from suing employers over background checks and allow states to enforce felon-hiring restrictions.

In July nine other attorneys general sent the EEOC a letter over the agency’s actions against employers.

The letter asked the EEOC to drop two lawsuits filed against retailer Dollar General and a BMW manufacturing plant for alleged discriminatory use of background checks.  EEOC v. Dolgencorp LLC d/b/a Dollar General, No. 13-cv-4307, complaint filed (N.D. Ill., E. Div. June 11, 2013); EEOC v. BMW Mfg. Co., No. 13-cv-01583, complaint filed (D.S.C., Spartanburg Div. June 11, 2013).

The state officials said the EEOC suits are “misguided” and “a quintessential example of gross federal overreach.”

“An employer may have any number of business-driven reasons for not wanting to hire individuals who have been convicted of rape, assault, child abuse, weapons violations, or murder — all crimes specifically mentioned in the complaints,” the letter said.

State v. Equal Employment Opportunity Commission et al., No. 13-cv-255, complaint filed (N.D. Tex., Lubbock Div. Nov. 4, 2013).