In a lawsuit filed in the United States District Court for the Northern District of Texas on November 4, 2013, Texas Attorney General Greg Abbott seeks injunctive and declaratory relief against the EEOC on the grounds that the agency’s April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions “purports to preempt the State’s sovereign power to enact and abide by state-law hiring practices.”  In particular, the complaint argues against the EEOC’s prohibition against blanket “no felons” hiring policies.  The Texas AG’s complaint highlights key failures and shortcomings of the EEOC’s recent investigative actions, and provides detailed examples of the “real world” effect of the guidance on the state’s hiring decisions.

First, the complaint examines the EEOC’s questionable and aggressive actions against several companies like Peoplemark, which, the complaint notes, resulted in a ruling from the Western District of Michigan sanctioning the 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 complaint goes on to provide examples of state agencies that apply “no felons” or similar policies in hiring decisions for what Texas believes are legitimate safety and job-related reasons.  For example, the complaint points out that the Texas Department of Public Safety, the Texas Juvenile Justice Department, and several Texas school districts “appl[y] absolute bars to employment” for applicants with felony convictions or other classes of criminal records.  The complaint argues that the EEOC’s guidance unlawfully forces state agencies into an untenable position—“the [agency] either must violate state and local laws that prohibit the ‘individualized assessments’ that EEOC requires and consider convicted felons for hire as Troopers, jailers, and school teachers—or the [agency] must ignore the EEOC’s enforcement guidance and risk an EEOC enforcement action like the ones the Commission launched against Peoplemark and Freeman.”

The state’s complaint concludes that compliance with the EEOC’s “interpretation” of Title VII requires state agencies to violate state law, rewrite hiring policies “at taxpayer expense,” and, most importantly, “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.”  As a result, Texas seeks declaratory and injunctive relief on the grounds that the “EEOC’s Enforcement Guidance purports to preempt state law and forces state entities and officials to choose between evaluating and hiring convicted felons in defiance of state law or risking investigations, challenges, and lawsuits from EEOC.”  This, according to Texas, violates the state’s constitutional right to sovereignty. 

Texas’ claims, when viewed in light of the EEOC’s recent high-profile defeats, present an intriguing question for the district court and, likely, the Fifth Circuit before the issue is ultimately resolved.  In addition, the Texas lawsuit echoes the sentiments of many employers, both public and private, and may be a sign of similar lawsuits to come.  For more information, see the attached Seton Hall Law Review Article for the perspectives of two Hunton & Williams partners on the EEOC’s enforcement guidance.