The State of Texas filed a lawsuit on Nov. 4 against the Equal Employment Opportunity Commission (EEOC) in federal court challenging the agency’s April 25, 2012 guidance on the use of arrest and conviction information in employment decisions.
According to the EEOC, its Guidance limits the ways firms can consider an employee’s or applicant’s criminal background information. The agency cautions that, under the disparate impact theory, the use of criminal background information may not disproportionately impact a class protected under the Civil Rights Act. This is unless an employer can establish that its policy is sufficiently job related and consistent with business necessity, even if the company's practices are applied neutrally without discriminatory intent.
Texas argues that the disparate impact theory is unconstitutional and says it has the authority to bar convicted felons from state employment. In addition, they say the EEOC’s guidance is actually a regulation improperly issued without the necessary statutory authority granted by Congress, and without complying with regulatory procedures.
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