Texas’ Mess Premature

By Bill Wright

Back in November, we alerted you to Texas’ lawsuit against the EEOC over the EEOC’s Enforcement Guidance prohibiting categorical employer policies that preclude hiring convicted felons. Texas v. EEOC, No. 5:13-CV-255-C (N.D. Tex. August 19, 2014). Texas wanted the court to prevent the EEOC from issuing right to sue notices based on the Guidance. The court, however, has refused to act. Despite the EEOC’s public rhetoric and the EEOC’s own reliance on the Guidance in other actions around the country, the court ruled that Texas’ dispute with the EEOC was not ripe. All that had happened so far (to Texas) was one applicant’s charge of discrimination citing his felony conviction and the EEOC’s issuance of a right to sue letter to that applicant. In the court’s opinion, Texas hadn’t been injured yet. Fortunately, other courts have taken up the issue. See our post from April concerning EEOC v. Kaplan Higher Education Corp. et al, No. 13-3408 (6th Cir. April 9, 2014).