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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance No. 915.002, titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Guidance was broadly understood to signal the EEOC’s intent to move aggressively to curb the ability of employers to base employment decisions on criminal history and as an invitation to the private plaintiffs’ bar to do the same. That understanding has proven to have been well-founded as the past 18 months have seen a number of high profile cases brought by the EEOC and private plaintiffs against employers such as BMW, Disney, Dollar General and others. At the same time, apparently unwilling to wait to be sued, the state of Texas sued the EEOC on Nov. 4, 2013, seeking a declaratory judgment that its policy of refusing to hire convicted felons for state positions does not violate Title VII.

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