It appears you can “mess with Texas” if you’re the EEOC. As you’ll recall from the March 2, 2014 posting Don’t Mess with Texas Pt. 2, the
Equal Employment Opportunity Commission had filed a motion to dismiss the State
of Texas’s lawsuit alleging that the
federal agency has overstepped its statutory authority by imposing limits on
employers’ use of criminal background checks in making employment decisions. These limits had been imposed under the EEOC’s
updated 2012 enforcement guidelines. In
the lawsuit, the State sought injunctive relief to block the EEOC’s enforcement
of the guidelines.
On Wednesday, August 20, 2014, a United States District Court Judge dismissed
the State’s lawsuit on the grounds argued by the EEOC. The Court held that Texas lacked standing to challenge
the guidelines because there was no current risk of EEOC action against the
state and any action by the Court would be premature. The Court noted:
Importantly, Texas does not
allege that any enforcement action has been taken against it by the Department
of Justice … in relation to the guidance” [and] b]ased upon this, the court cannot find a
‘substantial likelihood’ that Texas will face future Title VII enforcement
proceedings from the Department of Justice arising from the guidance.
It is important to note that the dismissal of the State’s lawsuit was on a
procedural basis and was not a ruling on the merits of the case. It is not clear at this point whether the
State of Texas will seek to appeal the ruling to the United States Court of
Appeals for the Fifth Circuit.
In the original lawsuit filed by Texas, it alleged that the EEOC “purports
to limit the prerogative of employers, including Texas, to exclude convicted
felons from employment” and that the State of Texas and “its constituent
agencies have the right to impose categorical bans on the hiring of criminals,
and the EEOC has no authority to say otherwise.”
The basis of the EEOC enforcement guidelines is the agency’s position that
employers’ reliance on criminal records as a factor in hiring decisions disproportionately
affects minorities, who statistically have higher rates of arrest and criminal
conviction, and has a disparate impact in violation of Title VII of the Civil
Rights Act. While not completely banning the use of background checks, the EEOC
guidelines place a burden on employers to prove that such reliance is based on
business necessity.
This victory for the EEOC comes after a string of litigation losses for the
agency in cases they have filed against employers for alleged discriminatory
use of background checks.
Mark Fijman is a labor and
employment attorney with Phelps Dunbar, LLC,
which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North
Carolina and London. To view his firm bio,
click here. He can be reached at (601) 360-9716 and by e-mail at
fijmanm@phelps.com
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