Texas is suing the EEOC to preserve its absolute ban on hiring felons for certain state positions.
Texas Attorney General Greg Abbott filed suit against the Equal Employment Opportunity Commission (EEOC) in federal court Monday, arguing that the EEOC's guidelines "limit employers from excluding convicted felons from employment," according to the Dallas Business Journal.
What does this suit mean for Texas employers, and can your business refuse to hire felons?
EEOC Guidelines Disapprove of Absolute Ban
The Texas suit alleges that the EEOC's guidelines, released in 2012, prevent the Texas government from upholding its longstanding ban on hiring felons to state positions.
In particular, the EEOC noted that unlawful discrimination may occur when a state imposes a ban on hiring applicants with any criminal record. This discrimination can be actionable discrimination under Title VII.
Under these guidelines, a felon's suit under Title VII would not be based on discrimination against felons, but more likely a disparate impact claim based on the policy's effect of excluding a particular racial group.
A business can try to defend itself against such a claim by providing that the exclusionary policy is both:
However, the EEOC's enforcement guidelines state that an absolute ban on felons, even if imposed by state law, can still leave the employer open to federal discrimination lawsuits.
Texas Fights Back
The Journal reports that Texas currently blocks all felons from being employed in jobs like "state troopers, school teachers, and jailers," and the current suit aims to keep it that way.
Legal conflict between state and federal authorities puts employers in the nasty position of violating state law in order to comply with the EEOC's guidelines, which Abbott claims violates state sovereignty.
Those not compelled by state law to bar the hiring of felons may attempt to mitigate future liability by following Target's lead and removing questions about criminal history from their applications.
Regardless of state laws, the EEOC's guidelines do not prevent employers from denying positions to persons with criminal backgrounds that would present a risk based on the job position (e.g., felony sex offenders as day care workers). Still, Texas is fighting for the right to ban all felons for certain positions.
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