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For the second time in less than six months, the EEOC finds itself on the wrong side of a lawsuit. The State of Texas has sued the EEOC in the Northern District of Texas seeking declaratory and injunctive relief against the EEOC for issuing its 2012 arrest and conviction guidance (the 2012 Guidance). In short, the Texas complaint argues that the EEOC did not have the authority to issue this rule. The lawsuit also claims that the EEOC’s position that Title VII trumps conflicting state laws violates its state sovereignty. As it stands, Texas state law allows for blanket, no-felons policies at certain state agencies. Through this lawsuit, Texas, in its role as an employer, attempts to preemptively force the EEOC to defend its 2012 Guidance. The 2012 Guidance fails to specifically inform employers what they can do when considering felons for employment, but rather merely outlines what the Commission believes that employers cannot do. Importantly, this lawsuit follows a pointed letter from nine Attorneys General stating that the 2012 Guidance is “misguided and a quintessential example of gross federal overreach” and attempts in Congress to prohibit the EEOC from spending funds enforcing the 2012 Guidance. The implications of cases like these will likely clarify the bounds of how courts will view the EEOC’s interpretation of Title VII in this area.

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