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Civil and Worker Rights Groups File Amicus Brief Supporting EEOC Guidance on Employer Use of Criminal Background Checks in Hiring
Two leading national civil rights and worker rights groups, a Texas civil rights organization, and a Texan today filed an amicus brief in support of an Equal Employment Opportunity Commission (“EEOC”) guidance on how employers may properly and non-discriminatorily use criminal background checks in their employment decisions. They filed their brief in the case, Texas v. EEOC, in the U.S. District Court for the Northern District of Texas.
This litigation represents an attack by the State of Texas on the EEOC’s bipartisan adoption in 2012 of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. The guidance describes how Title VII of the Civil Rights Act of 1964—which prohibits employment discrimination due to race, ethnicity, or other factors—applies to employers’ consideration of conviction and arrest records in assessing job applicants.
The amicus brief details the real-world consequences flowing from employment policies that categorically exclude people with records. Through this case, Texas seeks federal court approval of such exclusionary policies. The brief explains how such blanket policies—which affect millions of people living in Texas, and disproportionately people of color—weaken the economy, make it more difficult for employers to find qualified workers, undermine public safety, and harm families, particularly given that nearly half of all children in the U.S. have one parent with a record. The brief also aims to supplement the legal arguments made in support of the guidance by the defendants.
The brief was filed on behalf of Beverly Harrison, a Texas worker, the Texas State Conference of the NAACP, the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), and the National Employment Law Project (“NELP”), by attorneys from LDF, NELP, Cloutman & Cloutman LLP, and Levy Ratner P.C.
“The reality is that people with criminal records form a large portion of this country’s population,” said Leah Aden, senior counsel at LDF. “Due in large part to the failed War on Drugs and mass incarceration, racial disparities continue to plague our criminal justice system and, thus, people of color are disproportionately represented among those with records. But this reality should not limit their opportunities. Because people with records are our family members, friends, and fellow citizens, we should be defending tools like the EEOC’s guidance, which are necessary to assist employers with using individual criminal history information in a responsible and, most importantly, nondiscriminatory manner that benefits workers and, thereby, their families and our communities.”
“The EEOC guidance helps employers understand and comply with our nation’s civil rights laws, and it’s really just about common sense,” said Christine Owens, executive director of the National Employment Law Project. “It advises employers to consider the nature of the offense, how long ago it took place, and whether it’s relevant to the job sought. It encourages employers to treat all job applicants fairly and reasonably, and to avoid blanket exclusions that have a discriminatory effect.”
To underscore how counterproductive and senseless exclusionary hiring policies—like the kind that Texas trumpets—can be, the brief also highlights the story of Beverly Harrison. Ms. Harrison is a 61-year-old Black woman and grandmother who resides in Dallas, Texas. In 2013, she applied for a position with Dallas County Schools as a school crossing guard, but was terminated after eight days on the job because of a conviction from nearly 40 years before—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. Prior to being fired by DCS because of her decades-old conviction, Ms. Harrison had worked for 28 years for the City of Dallas, including in the marshal’s office.
In July, LDF, NELP, and co-counsel filed a motion to intervene on behalf of Ms. Harrison and the Texas NAACP. While that motion was denied, the Court did indicate that movants could seek to participate as amici curiae (“friends of the court”). Given the importance of the guidance, counsel accepted the invitation not just to explain why the guidance itself is legally valid, but also to offer the best evidence about how reducing barriers to employment for people with records benefits us all.
The lawsuit (Case No. 5:13-CV-255‑C) is being heard by Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas (Lubbock Division). A link to the amicus brief can be found here. To learn more about the case, visit LDF’s Texas v. EEOC resource page. Learn more about the EEOC guidance here.
Founded in 1940, the NAACP Legal Defense and Educational Fund, Inc. (LDF) is the nation’s first civil and human rights law organization and has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights. LDF’s Thurgood Marshall Institute is a multi-disciplinary and collaborative hub within LDF that launches targeted campaigns and undertakes innovative research to shape the civil rights narrative. In media attributions, please refer to us as the NAACP Legal Defense Fund or LDF. For more about LDF, visit www.www.naacpldf.org.
The National Employment Law Project is a non-partisan, not-for-profit organization that conducts research and advocates on issues affecting low-wage and unemployed workers. For more about NELP, visit www.nelp.org.
Levy Ratner, P.C. represents employees in litigation to protect and preserve employee rights, including the right to be free from discrimination in hiring and in the workplace. For more about Levy Ratner, visit www.levyratner.com.