Alerts

State of Texas Requests Court to Block EEOC Enforcement of Criminal Records Check Guidance

12.09.13

The Equal Employment Opportunity Commission's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the "Updated Guidance"), which was issued over 1 1/2 years ago, has recently been challenged in a lawsuit brought by the state of Texas. In the Complaint, the state sued the EEOC, asking a federal district court to declare invalid the EEOC's Updated Guidance and to enjoin the EEOC from using its alleged misinterpretation of Title VII of the 1964 Civil Rights Act to challenge Texas's policy of not hiring convicted felons for many state jobs. See State of Texas v. EEOC, N.D. Tex., Case No. 5:13-CV-00255-C.

In the Complaint filed on Nov. 4, 2013 in the U.S. District Court for the Northern District of Texas, the state seeks relief under the Administrative Procedure Act and the Declaratory Judgment Act from what it believes is the EEOC's incorrect view of Title VII and the agency's litigation strategy of suing employers who conduct criminal background screens and reject applicants with prior convictions. Specifically, the state alleges that the "EEOC's Enforcement Guidance purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment … 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 state asks the court to enjoin the EEOC from enforcing its Updated Guidance or issuing right-to-sue letters to charging parties alleging Title VII violations based on the Updated Guidance.

By way of background, the EEOC has targeted certain industries and has begun filing lawsuits, challenging the employers' use of background checks, based on the EEOC's concern that such practices have a "disparate impact" on protected classes of employees under Title VII. The Texas lawsuit, challenging what is perceived by employers to be the EEOC's overly aggressive restriction on the use of criminal background records in the hiring process, will be followed closely by employers who believe that careful and appropriate use of criminal history information in the hiring and employment context is an important and legitimate business tool.

If you have questions related to the content of this alert, please contact Labor and Employment Partner Cristina Portela Solomon (csolomon@gardere.com or 713.276.5352).

The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.

Search Tips:

You may use the wildcard symbol (*) as a root expander.  A search for "anti*" will find not only "anti", but also "anti-trust", "antique", etc.

Entering two terms together in a search field will behave as though an "OR" is being used.  For example, entering "Antique Motorcars" as a Client Name search will find results with either word in the Client Name.

Operators

AND and OR may be used in a search.  Note: they must be capitalized, e.g., "Project AND Finance." 

The + and - sign operators may be used.  The + sign indicates that the term immediately following is required, while the - sign indicates to omit results that contain that term. E.g., "+real -estate" says results must have "real" but not "estate".

To perform an exact phrase search, surround your search phrase with quotation marks.  For example, "Project Finance".

Searches are not case sensitive.

back to top