Late last week, a federal district court issued a limited ruling that blocks the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Attorney General from using the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions specifically against the State of Texas.
Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas (Lubbock Division) dismissed the case on procedural grounds, finding that the EEOC violated federal law by issuing the guidance without providing the public with notice and opportunity to comment. Judge Cummings’ order concludes that the EEOC Guidance cannot be enforced against the State of Texas, as an employer.
The EEOC Guidance explains what kinds of employer policies may violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, ethnicity, and other factors. The Guidance also instructs employers on how best to comply with federal civil rights law when conducting employment background checks. Although this ruling is a setback, under federal law all U.S. employers, including Texas, must ensure their hiring policies are in line with Title VII standards.
The consequences that flow from exclusionary hiring policies were documented in an amicus brief filed by the NAACP Legal Defense and Educational Fund, Inc. (LDF), the National Employment Law Project (NELP), Beverly Harrison, and the Texas State Conference of the NAACP. The brief illuminated the story of Ms. Harrison, a 61-year-old African American woman who was unjustly terminated from her job because of a conviction from nearly 40 years before—when she was only 19 years old—even though a court ultimately set aside that conviction and dismissed the indictment.
“The EEOC guidance was created so that demonstrated professionals and people of color like Beverly Harrison are not wrongfully denied employment,” said Leah Aden, senior counsel at LDF. “The court has undermined a helpful tool for employers to understand how to properly and non-discriminatorily use criminal background checks in their hiring decisions. But, following the decision, Title VII remains an important federal protection for millions of job applicants with records.”
“The court’s order is both disappointing and counterproductive, but it should not be confused for a license to discriminate against job-seekers with records, even in Texas. Title VII stands,” said Christine Owens, executive director of the National Employment Law Project. “More broadly, states and employers would do well to avoid hiring policies that exclude people with records, as they only weaken the economy, undermine public safety, and harm families and communities. In light of this order, we are exploring our legal options moving forward.”
Federal courts have long held that hiring policies that exclude people with records may disproportionately impact communities of color and violate Title VII. To avoid liability under federal law, employers in every corner of the country, including Texas, must ensure their hiring policies are in line with Title VII standards. In addition, a growing number of state laws require employers to follow EEOC-type guidelines and individually assess job applicants with records.
The EEOC Guidance was adopted with strong bipartisan support in 2012, following the solicitation of written public comments, meetings with stakeholder groups, and informational presentations at events across the country. It responded to the harsh reality—wrought by the widely discredited War on Drugs and racial biases in the criminal justice system—that one in three people nationwide (disproportionately people of color) have an arrest or conviction record. Even a minor record can carry lifetime consequences that undermine economic security and perpetuate generational poverty. The court ruling last week affects the roughly 13 million Texans with arrest or conviction records who now lack the benefit of the Guidance when seeking employment with the State of Texas, and it may also confuse other employers in Texas trying to understand their obligations under federal anti-discrimination law.
“When members of the NAACP and other minority groups in Texas cannot work, their access to housing is jeopardized, their ability to care for their families is weakened, and meeting many other financial obligations becomes almost impossible,” said Gary Bledsoe, president of the Texas NAACP.
###
Founded in 1940, the NAACP Legal Defense and Educational Fund, Inc. (LDF) is the nation’s first civil and human rights law organization and has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights. LDF has been a longstanding champion of economic justice issues, litigating the unanimous decision in Griggs v. Duke Power Co., which established the disparate impact theory of liability in the employment context, and challenging laws and policies that exclude individuals with criminal records from jobs. For more about LDF, visit www.naacpldf.org.
The National Employment Law Project is a non-partisan, not-for-profit organization that conducts research and advocates on issues affecting low-wage and unemployed workers. For more about NELP, visit www.nelp.org.
Levy Ratner, P.C. represents employees in litigation to protect and preserve employee rights, including the right to be free from discrimination in hiring and in the workplace. For more about Levy Ratner, visit www.levyratner.com.
