In July and August 2017, LDF, along with lawyers at the National Employment Law Project (NELP), Cloutman & Cloutman and Levy Ratner PC, moved to intervene in Texas v. EEOC. This is a pending challenge by Texas to the Equal Employment Opportunity Commission’s (EEOC) 2012 Guidance on the use of criminal records in hiring.
In light of the reality that millions of individuals in this country, disproportionately Black and Latino, have criminal records, in large part due to decades of mass incarceration, this Guidance is intended to be used by employers nationwide when considering applicants with criminal records for jobs. Consistent with the law and EEOC policies in place for decades, the Guidance sensibly advises employers not to categorically refuse to hire anyone with a criminal history but rather to consider the nature of the person’s offense, the amount of time that has passed since the criminal conduct occurred, and whether the conduct has any relationship to the job sought. The Guidance further advises employers to offer individuals the opportunity to explain their criminal history before making a decision about whether to offer the person a job. The Guidance further warns that employment policies concerning criminal records that unnecessarily exclude large numbers of racial minorities could violate federal antidiscrimination laws like Title VII of the Civil Rights Act of 1964.
Texas challenges the EEOC’s authority to issue this Guidance and to issue “right-to-sue” letters, which are a predicate to victims of employment discrimination being able to file a lawsuit, consistent with the Guidance. Texas also asks the federal court to give it the authority, as an employer, to categorically deny jobs to applicants based on a criminal conviction.
LDF and co-counsel represent Beverly Harrison, a 61-year-old Black mother and grandmother who resides in Dallas. In 2013, Ms. Harrison applied to be a school crossing guard for a position with Dallas County Schools. She, however, was terminated after eight days on the job because of a conviction from nearly 40 years prior—when she was only 19 years old—even though a court ultimately set aside that conviction and dismissed the indictment after Ms. Harrison completed two years of probation. Ms. Harrison subsequently worked for 28 years for the City of Dallas, including in the Marshal’s Office. She most recently worked for the Dallas Independent School District as a school cafeteria employee. Her experience shows how absurd bans on hiring people with records can be.
LDF and co-counsel also represent the Texas NAACP which, in conjunction with its branches, engages in reentry work and lobbying for legislation to support people with records to obtain jobs, housing, and other means to stably live and contribute to themselves, their families, and their communities. When Texas seeks to categorically deny people with records access to jobs, the organization must redirect its efforts to engaging in litigation such as this rather than supporting its members and other Texans with records.
LDF and Cloutman and Cloutman previously attempted to intervene in this case in 2014 before the case was dismissed. After an appeal by Texas, the case is now pending before a district court in Texas. Given that the federal government has shown in recent months that it may decline to vigorously defend rules and policies issued during the previous administration that advance civil rights or may change positions in litigation, we seek to intervene as defendants to vigorously protect the Guidance.