AUSTIN -- The state of Texas has filed an appeal against the Equal Opportunity Employment Commission (EEOC), its chair, Jenny Yang, and United States Attorney General Loretta Lynch. The appeal was filed in the United States Court of Appeals Fifth Circuit on June 27.

At issue in the suit is the EEOCs’s Enforcement Guidance when it comes to hiring convicted felons.

The state seeks a declaration of the enforcement guidance document from the EEOC regarding the hiring of employees with criminal backgrounds and whether it violates the Administrative Procedure Act. That act governs the procedures of administrative agencies and how they interact with the public.

Texas employs hundreds of thousands of people across the state in its various agencies and many of those agencies do not hire convicted felons, or in some cases, individuals who were convicted of misdemeanors.

“The sources of these bans stem from both Texas state statutes and longstanding employment policies adopted by the agencies,” the appeal states.

According to the state, its agencies hire neutrally without regard to race. When it comes to applicants who have been convicted of a crime, the state looks at each prospective employee on an individual basis.

Texas asserts that the enforcement guidance preempts state laws that bar applicants with certain criminal histories from being considered for specific jobs, such as teachers of law enforcement officials.

Texas is citing Title VII of the Civil Rights Act of 1964 as a basis for its appeal. Title VII makes it unlawful for any employer to “fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”

Title VII also states that it is unlawful for employers to limit or classify an employee or applicant in any way that would deprive or tend to deprive any individual of an employment opportunity.

According to the appeal, the EEOC’s policy is that categorical bans on the hiring of felons can constitute a violation of Title VII when they disproportionally affect blacks and Hispanics. That policy, or enforcement guidance, is at issue in the suit.

The enforcement guidance stated that an employer’s categorical exclusion of individuals with particular criminal records might be in violation of Title VII if it had a disparate impact on a particular protected class.


Texas’ appeal to the EEOC goes on to state that the district court erred and Texas has a “constitutional standing to challenge the enforcement guidance under the Administrative Procedure Act.”

The state of Texas believes it has standing, because it is an object of the enforcement guidance and it seeks to find out whether the enforcement guidance is a final agency action under the Administrative Procedure Act.

Texas seeks to challenge the enforcement guidance, stating that the EEOC has no way to enforce it.


“This court should not allow such a nakedly political suit to proceed,” the appeal states.

Texas also sued the EEOC in 2013 and asked the district court to prevent it from applying the enforcement guidance. District court dismissed that suit on the grounds that the state had not suffered an injury that gave it a right to challenge the guidance.

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