The state of Texas has become the most recent important actor to challenge the EEOC’s interpretation of employment law under Title VII of the 1964 Civil Rights Act. Texas Attorney General Greg Abbott filed a lawsuit on November 4th seeking “declaratory and injunctive relief against the Equal Employment Opportunity Commission…and its recently promulgated ‘enforcement guidance’.”
In publishing its well-known 2012 Guidance on Title VII (the ‘enforcement guidance’) on using criminal background checks in employment practices, the EEOC asserted a legal authority to impose the criterion of “disparate impact” in evaluating employers’ practices for potential discrimination.
Disparate impact refers to employment practices that could exclude members of a Title VII protected class from consideration for employment for reasons irrelevant to the job openings in question. For example, black applicants might be excluded disproportionately because they have disproportionate rates of arrest and conviction vs. non-blacks.
In some states, like Texas, the disparate impact criterion is in conflict with blanket state laws prohibiting hiring convicted felons for certain jobs. In effect, the Texas lawsuit challenges the right of the EEOC to override state employment laws based on the agency’s guidance.
Summary of the Texas Lawsuit
Our friends at Seyfarth Shaw have published a summary of the Texas lawsuit on their Workplace Class Action Blog. They point out that the lawsuit challenges the EEOC guidance on two counts:
- Texas argues that the EEOC did not have the authority to issue binding rules in the form of its 2012 Guidance. Normally, agencies are given explicit authority in legislation to implement a law in the form of regulations, and the lawsuit claims that the law does not extend to the guidance.
- More broadly, the state defends its sovereignty against the federal agency’s authority under Title VII to prescribe employment policies. In particular, the state has promulgated laws prohibiting the employment of felons in certain state agencies, and it claims the EEOC guidance contradicts these laws.
The EEOC Guidance suggests that employers can implement policies that avoid disparate impact by conducting individualized assessments. Based on the Green v. Missouri Railroad case criteria, individualized assessments would assure that exclusions would only happen based on the type of crime, the type of job, and how long ago a crime was committed. However, Seyfarth Shaw points out that the EEOC has admitted that Title VII does not require an individualized assessment in all cases.
Ambiguity in the 2012 Guidance
The problem embedded in the 2012 Guidance is that the criterion of “disparate impact” is difficult to implement in practice. It leaves employers at risk of legal action if they fail to comply with guidance criteria, yet gives them no clear ideas about how to implement a non-discriminatory policy.
The Texas lawsuit points out that this ambiguity is compounded when possibly conflicting state laws direct employers to take other specific actions. Which rules should employers try to comply with?
This reminds us of the old story about the Zen Master standing on a beach who tells his disciple, “Go find a stone for me.” When the disciple returns with a stone, the Master says, “No, not that one.”
The Texas lawsuit assures that current EEOC policy direction will continue to be tested in the courts. Most cases to date have focused on the practical difficulties in complying with the disparate impact criterion, but the Texas case may broaden the issue to attack the authority of the EEOC. Part of the issue going forward is whether the courts will achieve clear and practical tests for employment practices under the EEOC guidance, or if they will toss out the guidance criteria themselves. We’ll be watching.