Texas is suing the EEOC, arguing that its guidelines for hiring ex-cons violate state hiring laws
I have long advocated that ex-cons be given a fair shot at employment, provided that the crimes they committed do not pose a threat to the employer’s business or to his employees. For that reason I do not agree with my state’s laws against employing those who have been released from prison. Actually, the state would be better served if it considered hiring ex-cons on a case-by-case basis. In that way an ex-con would at least have a shot at gainful employment and if hired, would be less likely to be counted in the recidivism statistics.
STATE FIGHTING TO KEEP BANS ON HIRING EX-OFFENDERS
By L. M. Sixel
Houston Chronicle
March 27, 2014
If you have a felony on your record - or, in some cases, even a misdemeanor - you can't work for the Texas General Land Office, the Texas Department of Aging and Disability Services, the Texas Department of Public Safety or several other state agencies. In some agencies, all it takes is an arrest to be eliminated for consideration for a job.
And the state of Texas is trying to keep it that way.
The state sued the Equal Employment Opportunity Commission, arguing that the federal agency's new guidelines designed to give ex-offenders a chance to be considered for a job violate state hiring laws. Texas also argues that the federal guidelines are a departure from the state's longstanding practice of not hiring ex-offenders.
The Texas Juvenile Justice Department, for example, has an absolute bar to employment of "any applicant convicted of or arrested for certain felonies" regardless of the nature of the position, according to the lawsuit.
The lawsuit, which was filed late last year, is the latest chapter in the debate that started after the EEOC put the nation's employers on notice that blanket exclusions against considering applicants with arrest or conviction records can violate civil rights laws.
The federal agency issued guidance to employers in 2012 on how to use arrest and conviction records during the employment screening process.
It warned employers that impose blanket prohibitions against hiring applicants with criminal backgrounds can have a "disparate impact" against black and Hispanic applicants, who tend to have higher arrest and conviction records than other applicants.
The EEOC urges employers to determine in each case whether the disqualification is job-related and a business necessity, and to consider such factors as the nature and gravity of the offense, how much time has passed since the conviction and the time served and the type of job that is being sought.
The federal agency has been pursing several high-level cases against companies with blanket rules against hiring ex-offenders.
The state of Texas, with several thousand employees, claims in its lawsuit that it has the right to enforce laws and policies that bar convicted felons from government jobs and argues that it doesn't need to perform the "individualized assessments" the EEOC "purports to require."
It also is asking the court to set aside the EEOC's enforcement guidance and prohibit the agency from giving any job applicants the right to sue the state of Texas over its rules regarding arrest and conviction records.
The EEOC didn't return requests for comment for this column. But in its response to the lawsuit, the federal agency noted that its guidance was simply guidance. It wasn't a rule employers had to follow, nor does it have the force of law.
The federal agency also noted that Texas, with its sweeping anti-felon policies, is failing to distinguish between risky job candidates and ones who likely pose little risk.
"No one wants a child predator working at a school," the EEOC said in its response.
"But there is no similarly strong justification for the Texas Lottery Commission refusing to hire as a janitor someone who was convicted years ago of unlicensed acupuncture," which is a felony in Texas, according to the EEOC.
Or refusing to consider for a clerical position, someone convicted nine years ago of littering in a cave, according to the EEOC. (In Texas, three convictions of cave littering constitutes a felony.)
One local management lawyer was puzzled about the state's goal in bringing the case because typically, lawsuits like this occur only after the state has been sued or there is a dispute over a contract.
"It's a head scratcher," said Charles H. Wilson, an employment lawyer who represents management with Cozen O'Connor in Houston.
"There is not an actual controversy here," said Wilson, who handles age, race and sex discrimination cases on behalf of corporate and government clients.
Even if the state is successful, he said, it probably won't stop the EEOC from targeting employers, including public ones, that don't consider ex-offenders for jobs.
And consider this: While some agencies have blanket policies against hiring ex-offenders, another state agency helps ex-offenders find jobs.
As part of its service for hard-to-place job seekers, the Texas Workforce Commission pays for the first six months of an insurance bond for employers that covers losses associated with employee dishonesty such as theft or embezzlement.
Convicted felons are allowed to have some jobs in Texas, said Lauren Bean, spokeswoman for the Texas Attorney General's Office. But state law excludes them from other jobs, she said, and that is what the state's lawsuit aims to uphold.
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