US Justice Department in Washington. Credit: Diego M. Radzinschi/ ALM

Civil rights groups condemned the U.S. Justice Department’s “about-face” in an ongoing court challenge to federal guidance that aims to reduce employment discrimination against applicants with arrest or conviction records.

The advocates, including the NAACP Legal Defense and Educational Fund and National Employment Law Project, on Wednesday went to court to defend the U.S. Equal Employment Opportunity Commission’s guidance that cautions employers against blanket policies that prevent hiring workers with criminal histories. The friend-of-the-court-brief was filed in the U.S. Court of Appeals for the Fifth Circuit, where Texas is challenging the Obama-era EEOC guidance.

The Justice Department represents the EEOC in the case. The move to undermine the guidance marked the latest public clash between the Justice Department and the EEOC, both of which enforce protections under Title VII of the Civil Rights Act.

Justice Department lawyers last week told the Fifth Circuit the government would not abandon the appeal. DOJ lawyers, however, told the court that the views of the EEOC and the department did not align on the scope of the guidance as it pertains to “disparate impact” claims.

“It bears emphasizing that the department’s abrupt shift in position on disparate impact liability is exactly that: abrupt and in tension with its own recently held views, including in this very case,” Leah Aden, attorney with the NAACP Legal Defense and Educational Fund counsel of record, wrote in the friend-of-the-court brief, on behalf of the civil rights advocates. She added, “In short, while the department’s position has drastically changed, the relevant statutory provisions of Title VII have not.”

The EEOC’s guidance warns employers that relying on criminal convictions to disqualify applicants could have a disparate impact based on race and national origin, citing national data that black and Latino workers are disproportionately convicted.  The Justice Department told the Fifth Circuit that it does intend to enforce the EEOC guidance.

“Excluding people with records from meaningful employment opportunities is a surefire recipe for slower economic growth, more widespread poverty, increased recidivism, and additional legal liability for employers,” said Phil Hernandez, staff attorney at the National Employment Law Project. “That’s why everyone in Texas and across the country—even people without records—have an undeniable stake in preserving the EEOC’s Guidance, which stands atop a strong legal foundation.”

The Justice Department declined to comment Thursday.

Texas sued to block the guidance, arguing the state should have the right to refuse to hire convicted felons without further consideration. Texas said the guidance conflicts with state laws that do not allow businesses to hire certain individuals with criminal histories for certain jobs.

The amicus brief filed Wednesday includes Texas State Conference of the NAACP and a Texas resident named Beverly Harrison, a 62-year-old African-American woman who said she was fired from her job with Dallas County Schools in 2013 because a conviction from 1975. The advocates say Harrison’s case crystallizes employment barriers that black and Latino workers face.

The clash in the Fifth Circuit marks the latest public disagreement between the Justice Department and the EEOC, which still has an Obama-appointee majority. Two Trump nominees are pending Senate confirmation.

Last year, the Justice Department lined up against the EEOC in the U.S. Court of Appeals for the Second Circuit, arguing that federal civil rights protections do not extend to gay and lesbian workers. Several petitions at the U.S. Supreme Court present this issue to the justices.

The new amicus brief is posted below:


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