In May 2014, the NAACP Legal Defense and Educational Fund (LDF) filed a motion to join the U.S. Department of Justice in defending a recently filed lawsuit challenging the Equal Employment Opportunity Commission’s (EEOC) guidance on the use of criminal records in hiring. The motion was filed on behalf of the Texas State Conference of the NAACP (Texas NAACP) and an African-American grandmother who lives in Dallas and who has been denied a job as a school crossing guard due to a conviction that is nearly forty years old.
In November 2013, Texas Attorney General Greg Abbott filed a lawsuit against the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing employment antidiscrimination laws including Title VII of the Civil Rights Act of 1964. Attorney General Abbott seeks to strip the EEOC of its power to provide guidance about how employers should use criminal history information when screening applicants. Attorney General Abbott is also asking the court to declare that Texas has the right to impose absolute bars on hiring persons with criminal convictions, even if they are decades old and unrelated to the job at issue, and without giving any individualized consideration of the job applicant. Attorney General Abbott is using this lawsuit to try and further marginalize Texans with criminal records, and make it harder for them to gain employment and support themselves and their families. The lawsuit also seeks to undermine essential civil rights protections.
If this lawsuit is successful, it will be even harder for Texans with criminal records to gain employment. Employers would be free to adopt unnecessarily restrictive and overly broad criminal records policies, which would only result in narrowing the pool of qualified applicants. Further, if Attorney General Abbott succeeds in preventing the EEOC from fulfilling its mission to prevent unlawful discrimination, people with criminal records will have no recourse when they fall victim to these unfair (and likely unlawful) policies. And this lawsuit will not make the public safer, as Attorney General Abbott claims in his lawsuit. In fact, the opposite is more likely to occur, given that steady employment has been shown to be a key factor in lowering recidivism rates.
Attorney General Abbott is also seeking, through this lawsuit, to rollback fundamental civil rights laws and protections. Not only is he trying to undermine the EEOC, which is the agency with chief responsible for protecting our nation’s workers from untoward practices and conduct, but he is also attacking legal principles that have been recognized by the United States Supreme Court for decades. These principles—which are about guaranteeing equal protection and have been used to bring gender and racial diversity to the workplace—have garnered bipartisan support.
LDF, and its co-counsel, Edward B. Cloutman III of Cloutman and Cloutman, L.L.P., filed the motion to join the Department of Justice in defending the legality of the EEOC’s guidance. The EEOC’s guidance, which does not prohibit employers from using criminal background checks, or even try to discourage their use, is necessary to ensure that employers use criminal history information in a responsible and nondiscriminatory manner. Rather, the EEOC correctly cautions employers not to automatically exclude all applicants with criminal records, but rather to consider factors such as the time elapsed since the criminal conduct occurred as well as the relationship between the criminal conduct and the position sought. The EEOC also warns that employment policies concerning criminal records that unnecessarily exclude large numbers of racial minorities could violate federal antidiscrimination laws.