Texas Sues EEOC|Over Hiring Guidelines

LUBBOCK, Texas (CN) - Texas sued the Equal Employment Opportunity Commission in Federal Court, claiming EEOC guidelines limiting employers' rights to ban the hiring of felons endangers the public and encroaches on state sovereignty.

Texas challenges the EEOC's "enforcement guidance," which "purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment."

Citing the Administrative Procedure Act and the Declaratory Judgment Act, the lawsuit states: "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 EEOC can file civil lawsuits against employers under Title VII of the Civil Rights Act of 1964 and can issue right-to-sue letters to people who wish to sue their employers for violating the agency's interpretation of Title VII.

In April 2012, the EEOC adopted guidelines that limit employers' ability to exclude felons from jobs.

"In the EEOC's view, hiring policies or practices that categorically exclude all convicted felons create an unlawful 'disparate impact' under Title VII, and the statute instead mandates that all employers conduct 'individualized assessments' of convicted felons' job applications," Texas says in its 19-page complaint. "If an employer refuses to hire a convicted felon, it is the employer's burden to prove that the felony disqualification is 'job related for the position in question and consistent with business necessity.' The enforcement guidance warns that EEOC will investigate and challenge employers who use felony convictions as 'an absolute bar to employment.'"

Texas claims this conflicts with state law that prevents certain state agencies from hiring felons, agencies that have policies that require criminal background checks to prevent felons from holding jobs of public trust.

"If state agencies choose to comply with the EEOC's interpretation, they not only violate state law, but also must rewrite their hiring policies at taxpayer expense," the complaint states. "And these state entities 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. 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. And it could expose state entities to liability for employee misconduct."

Attorney General Greg Abbott, who filed the lawsuit, declared his candidacy for the 2014 gubernatorial race in July. He blasted federal officials in a statement, accusing them of endangering the public.

"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," Abbott said in the statement. "Texas has an obligation to enforce its absolute ban on hiring convicted felons for certain jobs such as state troopers, school teachers and jailers."

The lawsuit objects to several examples of EEOC enforcement, including prosecution of G4S Secure Solutions, a private security company that provides guards for government buildings and nuclear power plants.

"When G4S explained that Pennsylvania law prohibited the company from hiring felons to work as security officers, the EEOC claimed that state law was pre-empted, argued that such categorical bans violate Title VII, and demanded that the company justify the 'business necessity' of every criminal background check that it performed over a period of decades," the complaint states.

Texas also objects to the EEOC's disparate-impact lawsuit against Peoplemark, a temporary staffing company that refused to hire a two-time felon with convictions for housebreaking and larceny.

"In an attempt to prove that Peoplemark's hiring policy created a disparate impact, EEOC conducted a three-year investigation of the company and subpoenaed 18,000 pages of corporate documents," the complaint states. "Its investigation uncovered nothing, and Peoplemark's decision not to hire Sherri Scott proved prudent when she went back to prison in the middle of EEOC's investigation for a third felony conviction (this one for felonious assault). EEOC nonetheless continued to litigate against Peoplemark in an effort to harass the company and to 'drive up [Peoplemark's] costs.' The United States District Court for the Western District of Michigan sanctioned EEOC by dismissing its complaint with prejudice, awarding Peoplemark over $750,000 in fees and costs, and concluding that EEOC's conduct 'falls between frivolous and insulting.'"

The EEOC could not be reached Monday evening for comment.

Texas seeks declaratory judgment that the EEOC cannot enforce the guidelines against the state and an injunction barring it from issuing right-to-sue letters seeking this type of discrimination charge against the state.

Follow @davejourno

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