Last April, the Equal Employment Opportunity Commission issued enforcement guidance No. 915.002, more commonly referred to as the "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." Few people paid attention.
One of those who did was Texas Attorney General Greg Abbott, who has now seized on the obscure directive as the basis for his landmark 30th lawsuit against the Obama administration. Then again, who's counting?
— Greg Abbott (@GregAbbott_TX) November 4, 2013
The suit argues that the EEOC is effectively forcing the state of Texas to hire convicted criminals. Here's the money quote:
If state agencies choose to comply with the EEOC's interpretation, they not only violate state law, but also must rewrite their hiring policies at taxpayer expense. And these state entities also must begin evaluating and hiring felons to serve in law enforcement, teach in local elementary schools, nurse veterans and the disabled, counsel juvenile detainees, and coach little league. This would expose the entire State -- including, in particular, its most vulnerable citizens -- to a class of individuals who have a proven track record of disobeying the law.
The key word here is choose. The EEOC's directive is not a mandate but a voluntary guideline. As it explains in an FAQ, it is aimed at helping employers avoid legal liability by ensuring that their use of criminal background checks does not "disproportionally exclude people of a particular race or national origin," or that, if it does, that they can show their exclusion of felons is "job related and consistent with business necessity."
The EEOC says that bar is low, requiring an employer to consider the nature of the crime, how long ago it was committed and what job an applicant is seeking.
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Abbott says the agency's investigations have shown otherwise. He cites various recent cases -- against Dollar General, BMW, Pepsi, and others -- in which the EEOC has used "abusive litigation tactics" to go after companies for refusing to hire felons.
He is particular concerned by language warning employers that the EEOC will challenge employers who use felony convictions as "an absolute bar to employment," as several Texas agencies do. To comply with the EEOC directive and avoid sanction, Abbott says those agencies will have to ignore state law and rewrite their hiring policies at taxpayer expense.
"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," Abbott announced in a news release. "Texas has an obligation to enforce its absolute ban on hiring convicted felons for certain jobs such as state troopers, school teachers and jailers."
Others might argue that Abbott has an obligation to stop spending taxpayer money filing lawsuits against the federal government, but those people will be voting Wendy Davis for governor anyway.