Business Insurance will be back online in October. Please check back then to subscribe/register.

All existing subscriptions will be honored. Contact info@businessinsurance.com with any questions.

ARC: HOW COMPANIES CAN PROPERLY CONDUCT CRIMINAL BACKGROUND CHECKS ON WORKERS AND POTENTIAL HIRES

Texas sues EEOC over criminal background check policy

EEOC Criminal Background Check Policy

The Texas attorney general has filed a lawsuit against the U.S. Equal Employment Opportunity Commission in federal court, seeking a ruling that it is not obligated to follow the agency's criminal background check policy.

Texas should be permitted to follow the “no felons” rule of many of its state agencies, says the complaint in State of Texas vs. Equal Employment Opportunity Commission and Jacqueline A. Berrien, in her official capacity as chair of the Equal Employment Opportunity Commission, which was filed by Texas Attorney General Greg Abbott in U.S. District Court in Lubbock, Texas, on Monday.

The focus of the litigation is enforcement guidance issued by the EEOC in April 2012 that requires employers to first consider the nature and gravity of the offense, the time that has passed since the offense and the nature of the potential job before rejecting applicants because of their criminal backgrounds.

“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,” says the lawsuit.

“The State of Texas employs hundreds of thousands of people. For many state jobs, state law and longstanding hiring policies impose absolute bans on hiring convicted felons (or in some instances persons convicted of certain categories of felonies). These absolute exclusions do not allow the sort of 'individualized assessments' that EEOC's Enforcement Guidance purports to require,” says the lawsuit.

“The State 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 State must ignore the EEOC's enforcement guidance and risk an EEOC enforcement action like the ones the Commission launched against Peoplemark and Freeman,” says the lawsuit.

In Equal Employment Opportunity Commission v. Peoplemark Inc., the 6th U.S Circuit Court of Appeals in Cincinnati held in October that a temporary employment agency was entitled to more than $750,000 in attorneys and expert fees in connection with a lawsuit that unjustifiably charged the firm with having a companywide policy of rejecting job applicants who are felons, in violation of Title VII of the Civil Rights Act of 1964.

%%BREAK%%

In U.S. Equal Employment Opportunity Commission vs. Freeman (Freeman Decorating Services Inc.), a federal judge in August granted the employer summary judgment dismissing an EEOC lawsuit in which the company was accused of using criminal background check information that had a disparate impact on minorities.

The Texas lawsuit seeks a declaratory judgment that EEOC's enforcement guidance is unlawful and that its interpretation of Title VII cannot annul state sovereign immunity.

Mr. Abbott, who is a Republican running for governor of Texas, said in a statement, “Once again, the Obama administration is overreaching its legal authority by trying to impose hiring rules on states that violate state sovereignty and — in this instance — endanger public safety.”

In response to a request for a comment, the EEOC said in a statement that while Ms. Berrien has received a “courtesy” copy of the complaint, she has not yet been served, as required by the federal Rules of Civil Procedure.

This is not the first time the EEOC's policy has raised the ire of a state attorney general. In July, nine other Republican state attorneys general asked the EEOC to reconsider its policy on criminal background checks and dismiss two lawsuits that are focused on the issue.

In a response sent in August, Ms. Berrien said their objections “appear to be premised on a misunderstanding.”

More from BI