Texas Messes with EEOC

by Sherman & Howard L.L.C.
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When Texans say “Don’t Mess With Texas”, they’re speaking directly to the EEOC these days. The State of Texas recently sued the EEOC, seeking to prevent the EEOC from enforcing its 2012 Enforcement Guidance on employer use of criminal background checks. State of Texas v. EEOC. The EEOC’s 2012 Enforcement Guidance attempted to prohibit covered employers from using categorical rules that exclude job applicants solely because they have been arrested or convicted of a felony. The Enforcement Guidance attempted to order employers to analyze each such applicant’s criminal history individually and ensure that the arrest or conviction disqualification is “job related for the position in question and consistent with business necessity.” The State of Texas has taken great umbrage with these directives, and argues in its lawsuit that the EEOC lacks any legal authority to enact substantive anti-discrimination rules, which is precisely what the Enforcement Guidance seeks to accomplish. Texas also points out in its lawsuit that the EEOC has engaged in extremely inappropriate litigation tactics in the course of trying to enforce its own view of criminal background checks, including the EEOC’s shenanigans in the recently-reported Peoplemark v. EEOC suit. (Click here to read this blog post.) According to the lawsuit, “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.”

We can expect other states to follow suit in the near future, although “Don’t Mess With Connecticut” just doesn’t sound quite as menacing as “Don’t Mess With Texas.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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