Texas Attorney General (AG) Greg Abbott has filed suit against the Equal Employment Opportunity Commission (EEOC), seeking a declaratory judgment that Texas and its agencies be entitled to maintain their current policies barring convicted felons, or categories of convicted felons, from state employment. Convicted felons and categories of convicted felons are currently disqualified by law from employment at several agencies, including the Texas Department of Public Safety, the Texas Department of Aging and Disability Services, the Texas Juvenile Justice Department, the Texas Lottery Commission, and the Texas Parks and Wildlife Department, and from working as schoolteachers or coaches. State law was called into question, however, when the EEOC issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” in April 2012. 
The EEOC enforcement guidance prohibits employers from enforcing blanket policies excluding applicants for employment based on certain criminal conduct, unless they can show that the policy is job-related and consistent with business necessity, both in general and as applied to each employee who is excluded from employment as a result of the policy. An employer cannot establish the defense simply by pointing to its mandatory compliance with state law excluding employment of individuals with criminal records.
Recognizing the conflict between state law and the EEOC’s enforcement guidance, AG Abbott is seeking a ruling that (1) allows Texas and its agencies to maintain the current policies barring employment of convicted felons from state employment, (2) prohibits the EEOC from enforcing its guidance against the state and from issuing right-to-sue letters to individuals seeking to pursue discrimination charges against the state, and (3) holds the enforcement guidance unlawful and sets it aside. In the suit, the AG contends that Texas employs hundreds of thousands of people and hires a large number of employees every day, making individualized assessments burdensome.
The lawsuit further contends that “if state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must re-write 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. And it could expose state entities to liability for employee misconduct.”
Abbott’s strong proactive response to the enforcement guidance may have been triggered by the EEOC’s aggressive track record in attempting to enforce the guidance. As the AG pointed out in the lawsuit, the agency has launched hundreds of investigations into allegations of convicted felon discrimination and is pursuing civil actions against several employers on the basis of the enforcement guidance. For example, the EEOC is prosecuting a private security company in Pennsylvania over its hiring policies, which are premised on Pennsylvania law prohibiting security companies from hiring convicted felons to work as security officers.
The EEOC also sued BMW on behalf of a group of felons who had been fired from their jobs at its manufacturing plant in South Carolina. According to Abbott’s lawsuit, “BMW fired those employees because they had been convicted of various crimes[,] including murder, rape, and other offenses involving ‘theft, dishonesty, and moral turpitude.'” The EEOC determined that BMW had failed to carry its burden of proving that it had a “business necessity” not to hire, or to continue to employ, the individuals.
As the AG’s lawsuit illustrates, the EEOC’s enforcement guidance has put the state of Texas between a rock and a hard place, where it must either violate state and local law prohibiting the individualized assessment the EEOC requires or comply with state law, ignore the guidance, and risk EEOC enforcement action. Many states have laws prohibiting or limiting the hiring of individuals with criminal records. As a result, it’s unlikely that Texas will be the only state to seek relief from the EEOC’s enforcement guidance. 
Mark Flora is partner and office head in the Austin office of Constangy, Brooks & Smith, LLP. He may be contacted at mflora@constangy.com.
In what way is status as a convicted felon, a protected class?
I got convicted of a felony when i was 23, i am 45 now . I believe once u do your time after 5 years you should have your record sealed on not violent felonies. That way a person can move on with his or her life. In Texas you get screwed bad. It take a pile of morey ,good lawyer and a pardon from the governor then a expungement of your record to move on with your life.
Considering that 97% of all convictions are a result of plea bargaining, where state prosecutors and their “public defending” cohorts manipulate innocents into guilty pleas – I would think that one are is in MAJOR NEED OF REFORM. Either the state can stop the abuses before they start…or the state can offer some type of remedy so these INNOCENT FELONS can reclaim their lives after serving their sentences.
I used to be a teacher in Special Ed. dept, after trusting the system and believing a self serving attorney who had a conflict of interest in my case….even 8 years after being released from State Jail…(14 years after the alledged crime was committed) I am still unable to find stable employment, still forced to utilized government assistance, and forever viewed a “deplorable” in the eyes of society. Thanks TEXAS…you and your OFFICIALS can continue your oppression of the innocent.