The Background Backlash Continues – Texas Sues The EEOC Over Its Criminal Background Guidance

For the second time in less than six months, the EEOC finds itself on the wrong side of a lawsuit.  On November 4, 2013, the State of Texas sued the EEOC in the Northern District of Texas seeking declaratory and injunctive relief against the EEOC for issuing its 2012 arrest and conviction guidance (the “2012 Guidance”). In short, the Texas complaint argues that the EEOC did not have the authority to issue this  rule (described in detail below). The lawsuit also claims that the EEOC’s position that Title VII trumps conflicting state laws violates its state sovereignty. As it stands, Texas state law allows for blanket, no-felons policies at certain state agencies. Through this lawsuit, Texas, in its role as an employer, attempts to preemptively force the EEOC to defend its 2012 Guidance. Importantly, this lawsuit follows a pointed letter from nine Attorneys General stating that the 2012 Guidance is “misguided and a quintessential example of gross federal overreach” (here) and attempts in Congress to prohibit the EEOC from spending funds enforcing the 2012 Guidance. 

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