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Equality for Convicts?

Another case of federal overreach.

Dec 16, 2013, Vol. 19, No. 14 • By TERRY EASTLAND
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Consider that Title VII applies to public as well as private employers, including the state of Texas and its Department of Public Safety, Department of Aging and Disability Services, General Land Office, Juvenile Justice Department, state lottery commission, and Parks and Wildlife Department, not to mention school districts.

Texas states in its complaint that “state law and longstanding hiring policies impose” on the state’s public employers “absolute bans on hiring convicted felons or in some instances persons convicted of certain categories of felonies” and that “these absolute exclusions do not allow the sort of ‘individualized assessments’ ” that the guidance embraces.

It may seem, then, that Texas has asserted that its law and federal law are in conflict. In such a case, state law is “preempted,” and the state must comply with the federal law.

But, of course, Texas is not saying that. Its suit argues that the conflict is not between Texas law and Title VII but between Texas law and the “EEOC’s interpretation” of Title VII, as stated in the guidance. And that is not a real conflict, says Texas, because the EEOC’s interpretation of Title VII is not federal law. 

The complaint explains that “Congress has denied the EEOC the authority to promulgate substantive rules interpreting Title VII.” And yet that is what the Enforcement Guidance attempts to do. When the guidance announces that hiring policies categorically excluding convicted felons create an unlawful “disparate impact” under Title VII and employers instead should conduct “individualized assessments” of job applicants with felony records, that is not Congress speaking, says Texas, but an agency that Congress has instructed not to make substantive rules interpreting Title VII.

Texas further maintains that those rules, if not invalidated, would require state employers “to choose between evaluating and hiring convicted felons in defiance of state law or risking investigations, challenges, and lawsuits” from the EEOC. 

The EEOC has until early January to respond. The agency is likely to argue that the case is premature, and Texas to respond that it shouldn’t have to wait until the EEOC sues a state employer, especially given the agency’s record of abusive litigation tactics.

If the case goes forward, Texas’s strongest claim is that the court should “hold unlawful and set aside the Enforcement Guidance” on the ground that the agency “has exceeded its statutory authority.” If the case centers on that claim, the EEOC will be forced to defend the legality of its Enforcement Guidance. And so it will have to defend its use of disparate impact analysis in criminal background check cases and address whether it is requiring or merely “encouraging,” as it says it does, individualized assessments of job applicants with criminal records.

In July the attorneys general of nine states sent a letter to the commission describing the Enforcement Guidance as “a quintessential example of gross federal overreach” and asking (unsuccessfully) that it be rescinded. It would not be surprising if those states followed Texas’s example and filed cases on the same issues.

If not rescinded by decision of the commissioners, the Enforcement Guidance still could be held “unlawful and set aside” by the federal courts—as should be the fate of any gross federal overreach.

Terry Eastland is an executive editor at The Weekly Standard.

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