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Texas Sues EEOC to Keep Felons Out of Jobs

By Brett Snider, Esq. on November 07, 2013 2:58 PM

Texas filed suit on Monday over the right of Texas state employers to absolutely bar the hiring of felons that would be stymied by the EEOC's guidelines.

According to the Dallas Business Journal, Texas Attorney General Greg Abbott filed suit in federal court challenging the Equal Employment Opportunity Commission's enforcement guidelines which recommend that absolute bans on hiring felons run afoul of Title VII.

Does Abbott have a case here, or is this just an issue to ride in his race against Wendy Davis for the Texas governorship?

Texas State Employers Don't Hire Felons

The Texas suit alleges that the EEOC's guidelines on employers' use of criminal history effectively intrudes on the State of Texas' "sovereign right to impose categorical bans on the hiring of criminals."

Specifically, the complaint alleges that the EEOC's 2012 guidelines would serve to force Texas employers to hire felons under threat of disparate impact investigations and suits prompted by the EEOC.

Currently the Texas Department of Public Safety (DPS) has an absolute ban on hiring felons to become law enforcement agents, one that is supported by Texas law, but may violate the EEOC's guidelines.

The parade of horribles caused by following the EEOC's authority includes hiring felons as  "[t]roopers, jailers, and school teachers." In the alternative, ignoring the EEOC's guidance would risk a hellstorm of Title VII disparate impact investigations, a significant burden even if the investigation is found to be frivolous.

Sovereignty or Supremacy

The big problem here is that, Title VII is the law of the land as far as employment discrimination is concerned, but it is unsettled whether Title VII pre-empts Texas' felon hiring ban. EEOC Enforcement Guidance is certainly instructive or persuasive, but it isn't binding -- see the EEOC's guidance on transgender workers as applied to Texas for a refresher.

So really what Texas is asking the court is to decide an issue of law: whether categorical felon bans are in conflict with Title VII's requirements for employers defending against disparate impact claims. The suit reads the EEOC's interpretation as requiring "individualized assessments" of applicants to pass muster for a non-discriminatory policy.

On the other hand, do the State of Texas' police powers allow it to promulgate this sort of absolute ban on hiring felons, and does the EEOC's guidance intrude into the area of sovereignty?

Bottom Line

No matter how the court decides this case, Atty. Gen. Abbott will be certain to use the issue in his gubernatorial campaign against opponent Wendy Davis.

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