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Case 5:13-cv-00255-C Document Filed 11/04/13 THE UNITED STATES DISTRICT COURT
JACQUELINE BERRIEN, her official capacity Chair the Equal Opportunity Commission,
Case No. ___________
The State Texas seeks declaratory and injunctive relief
against the Equal Employment Opportunity Commission EEOC and its
recently promulgated enforcement guidance. See EEOC, Consideration
Arrest and Conviction Records Employment Decisions Under Title VII
the Civil Rights Act 1964, No. 915.002 (Apr. 25, 2012) Enforcement
Guidance, attached hereto Ex. A).
EEOC Enforcement Guidance
purports limit the prerogative employers, including Texas, exclude
convicted felons from employment. Texas brings this suit under section 10(a) the Administrative Procedure Act APA U.S.C. 702, and the
Declaratory Judgment Act, U.S.C. 2201, 2202. The State Texas and
its constituent agencies have the sovereign right impose categorical bans the hiring criminals, and the EEOC has authority say otherwise.
Case 5:13-cv-00255-C Document Filed 11/04/13 THE PARTIES
The Plaintiff the State Texas.
Through its constituent
agencies, the State employs hundreds thousands people.
The Defendants are the EEOC, federal law-enforcement
agency, well Jacqueline Berrien, the Chair EEOC, who sued
her official capacity.
The EEOC empowered bring civil enforcement
actions against employers for violating Title VII the Civil Rights Act
1964 Title VII See U.S.C. 2000e-6. The EEOC also may issue rightto-sue letters that allow private individuals sue their employers for
violating EEOC interpretation Title VII. See id. 2000e-5(f).
The Court has federal-question jurisdiction under U.S.C.
 1331 because this suit concerns the scope EEOC authority under Title
VII, and also arises under the APA. The Court also has jurisdiction under U.S.C. 1346 because the EEOC agency the United States.
Finally, the Court has jurisdiction compel officer employee the
EEOC perform his her duty under U.S.C. 1361.
Venue proper this District under U.S.C. 1391(e)
because the State resident this District, the State and its constituent
agencies have employees this District, and substantial part the events omissions giving rise the State claim against EEOC unlawful agency
action occurred this District.
Case 5:13-cv-00255-C Document Filed 11/04/13
This Court authorized award the requested declaratory and
injunctive relief under the APA, the Declaratory Judgment Act, U.S.C.
 2201 2202, and U.S.C. 1361.
The EEOC and its Enforcement Guidance
Congress has denied EEOC the authority promulgate
substantive rules interpreting Title VII. General Electric Co. Gilbert, 429
U.S. 125, 140 (1976).
EEOC has authority issue only procedural
regulations carry out the provisions Title VII. See U.S.C. 2000e12(a). April 25, 2012, EEOC Commissioners adopted,
vote, document purporting offer enforcement guidance for employers 
use arrest conviction records.
See Ex.
That document directs
employers conform their hiring practices EEOC guidance directs
individuals file charges discrimination for alleged violations EEOC
 guidance and directs EEOC staff bring the full weight the United
States enforcement authority bear those employers who might disobey
the Commission guidance. particular: The Commission intends this
document for use employers considering the use criminal records
their selection and retention processes; individuals who suspect that they
have been denied jobs promotions, have been discharged because
their criminal records; and EEOC staff who are investigating
Case 5:13-cv-00255-C Document Filed 11/04/13
discrimination charges involving the use criminal records employment
decisions. Id.
interpretation Title VII. EEOC view, hiring policies practices that
categorically exclude all convicted felons create unlawful disparate
impact under Title VII, and the statute instead mandates that all employers
conduct individualized assessments convicted felons job applications. Id. 20. employer refuses hire convicted felon, the
employer burden prove that the felony disqualification job related for
the position question and consistent with business necessity. Id. see
also id. (urging employers not ask about convictions job
applications The Enforcement Guidance warns that EEOC will investigate
and challenge employers who use felony convictions absolute bar
employment. Id. n.90. And further cautions that [a]n employer
evidence racially balanced workforce will not enough disprove
disparate impact. Id. 10.
The Enforcement Guidance also instructs employers, including
the State Texas, ignore state and local laws that disqualify convicted
felons from holding certain jobs, the extent those state and local laws
conflict with EEOC interpretation Title VII. See id. States and
local jurisdictions also have laws and/or regulations that restrict prohibit
the employment individuals with records certain criminal conduct.
Case 5:13-cv-00255-C Document Filed 11/04/13
Unlike federal laws regulations, however, state and local laws
regulations are preempted Title VII.
EEOC already has launched hundreds investigations against
employers who, EEOC estimation, are insufficiently solicitous
convicted felons who want jobs.
For example, EEOC prosecuting G4S Secure Solutions (USA),
Inc. G4S private security company that provides security guards for
government buildings, nuclear power plants, and other secure installations.
When G4S explained that Pennsylvania law prohibited the company from
hiring felons work security officers, the EEOC claimed that state law
was preempted, argued that such categorical bans violate Title VII, and
demanded that the company justify the business necessity every criminal
background check that performed over period decades.
13. June 11, 2013, EEOC used its Enforcement Guidance sue
the national discount retailer Dollar General.
See Compl., EEOC
Dolgencorp LLC d/b/a Dollar General, Case No. 1:13-cv-4307 (N.D. Ill.).
EEOC brought suit behalf 8,400 employees who were denied
employment account their felony convictions. Id. For example,
EEOC lead plaintiff was denied employment Stocker/Cashier because
her criminal-background check revealed two drug-related convictions. Id. EEOC view, however, Dollar General failed carry its burden
prove that had business necessity not hire twice-convicted drug
Case 5:13-cv-00255-C Document Filed 11/04/13
abusers handle the company money, serve the company customers, and
manage the company assets. Id.
Also June 11, 2013, EEOC used its Enforcement Guidance
sue the carmaker BMW. See Compl., EEOC BMW Manufacturing Co.,
Case No. 7:13-cv-01583 (D.S.C.). EEOC sued behalf felons who were
fired from their jobs BMW manufacturing facility. Id. BMW fired
those employees because they had been convicted various crimes including
murder, rape, and other offenses involving theft, dishonesty, and moral
turpitude. Id. (internal quotation marks omitted). EEOC view,
however, BMW failed carry its burden prove that had business
necessity not hire violent felons and convicted thieves work
warehouse with millions dollars worth luxury automobiles. Id.
The targets these investigations and prosecutions have been
subjected sanctionable litigation tactics. For example, EEOC brought
disparate-impact lawsuit against temporary staffing company named
Peoplemark because refused hire woman named Sherri Scott after her
criminal-background check disclosed that she was two-time felon with
convictions for housebreaking and larceny. 
Order, EEOC Peoplemark,
Inc., Case No. 1:08-cv-907 (W.D. Mich. Mar. 31, 2011). attempt
prove that Peoplemark hiring policy created disparate impact, EEOC
conducted three-year investigation the company and subpoenaed 18,000
Its investigation uncovered nothing, and
Case 5:13-cv-00255-C Document Filed 11/04/13
Peoplemark decision not hire Sherri Scott proved prudent when she went
back prison the middle EEOC investigation for third felony
conviction (this one for felonious assault). Id. n.2. EEOC nonetheless
continued litigate against Peoplemark effort harass the company
and drive [Peoplemark costs. Id. The United States District
Court for the Western District Michigan sanctioned EEOC dismissing
its complaint with prejudice, awarding Peoplemark over $750,000 fees and
costs, and concluding that EEOC conduct falls between frivolous and
insulting. Id. n.8, 22.
Similarly, EEOC sued trade-show-and-convention company
called Freeman for refusing hire felons. the course that lawsuit,
EEOC committed numerous discovery violations. Only after forcing Freeman file 222-page motion compel did EEOC finally abandon its
Even then, however, the Commission did not abandon its
abusive litigation tactics. EEOC retaliated imposing overbroad discovery
demands Freeman, which the United States District Court the District Maryland eventually disallowed but only after Freeman was forced
spend substantial time and money discovery dispute occasioned
EEOC attempts force the company hire felons.
The soda company Pepsi Beverages avoided EEOC abusive
litigation tactics, but did only caving the Commission demands.
EEOC accused Pepsi creating unlawful disparate impact refusing
Case 5:13-cv-00255-C Document Filed 11/04/13 hire approximately 300 individuals with criminal backgrounds.
January 2012, EEOC forced Pepsi avoid that unintentional disparate
impact committing intentional racial discrimination and hiring those 300
convicted criminals.
The State and its Employees
The State Texas employs hundreds thousands people.
For many state jobs, state law and longstanding hiring policies impose
absolute bans hiring convicted felons (or some instances persons
convicted certain categories felonies). These absolute exclusions not
allow the sort individualized assessments that EEOC Enforcement
Guidance purports require. Cf. Ex. 20.
For example, the Texas Department Public Safety DPS
state agency. employs hundreds Texas State Troopers and other law
enforcement officers throughout the State, including this District. Under
Texas law, [a] person who has been convicted felony disqualified officer for any law-enforcement agency anywhere the State. TEX. OCC.
CODE 1701.312(a). And DPS refuses hire anyone convicted any felony certain misdemeanors. See DPS, Employment/Career Opportunities, http:// Background investigations,
including criminal history record checks, are conducted all prospective
employees. Felony convictions and certain misdemeanor convictions will
Case 5:13-cv-00255-C Document Filed 11/04/13
cause for immediate rejection. DPS, Disqualifiers, http://www.txdps.state.
The Texas Department Aging and Disability Services DADS state agency. administers various programs and facilities for
the benefit elderly and disabled individuals throughout the State,
including this District.
DADS applies absolute criminal bars
DADS, Bars Employment with DADS, http://www.dads.
The bars imposed DADS include
long and wide-ranging list disqualifying felonies statutorily specified
the Texas Legislature and others specified the agency. See id.
The Texas General Land Office GLO state agency.
administers public lands and oversees various veterans affairs throughout
the State, including this District. [T]o prudently manage its workforce, 
GLO imposes criminal-background checks all job applicants selected for
hire and all volunteer workers, regardless their positions. 
Legislative Appropriations Request 2014 2015, (Aug. 23, 2012),
And protect the brave veterans who live GLO-administered Texas State
Veterans Homes, the Texas Legislature has imposed absolute bans
employing certain convicted felons who otherwise might want work
those facilities. See TEX. HEALTH SAFETY CODE ch. 250.
Case 5:13-cv-00255-C Document Filed 11/04/13
The Texas Juvenile Justice Department JJD state
agency. administers correctional programs and institutions for juveniles
throughout the State, including this District. JJD applies absolute bars
employment for any applicant convicted arrested for certain felonies,
 [r]egardless the nature the position. 
JJD Personnel Policy and
Procedure Manual, Background Checks, d.2.B.ii,
policies/prs/prs05/prs0513.html. And imposes even more sweeping absolute
bars employment for criminals who want work correctional series
positions. Id. d.2.B.iii.
The Texas Lottery Commission TLC state agency.
administers Texas statewide lottery system throughout the State, including this District. TLC imposes absolute bar hiring anyone convicted
any felony certain other designated offenses within the last ten years.
The Parks and Wildlife Department PWD state agency. administers numerous parks and wildlife programs and employs game
wardens throughout the State, including this District. Under Texas law,
the approximately 500 game wardens employed PWD are peace officers, 
and such, they fall under the same absolute no-felons policy that applies
other law-enforcement officers throughout the State.
CODE 55.802(1); TEX. OCC. CODE 1701.001(3) (4), 1701.312(a); TEX.
PARKS WILDLIFE CODE 11.019. PWD imposes absolute ban hiring
any game warden who ever has been convicted felony Class
Case 5:13-cv-00255-C Document Filed 11/04/13
PWD, Requirements for Game Warden, http://www.tpwd.
imposes absolute prohibitions game-warden applicants who have been
convicted certain lesser offenses. Id.
25. addition, the Texas Legislature prohibits school districts from
hiring anyone convicted certain felonies. See TEX. EDUC. CODE 22.085.
And many local school districts throughout the State maintain absolute
exclusion hiring convicted felons teach coach their students. For
example, the Austin Independent School District imposes absolute ban
hiring anyone convicted any felony any point the past. See Austin
ISD, Board Policy Manual, Personnel-Employment Practices, http://pol.tasb.
org/Policy/ Code/1146?filter=DC.
Effect the EEOC Enforcement Guidance the State
and its Employees
The EEOC Enforcement Guidance has direct and immediate
impact the day-to-day business the State, its agencies, and its political
subdivisions. EEOC has propounded substantive interpretation Title VII
that purports preempt the State sovereign power enact and abide
state-law hiring practices. The State either must violate state and local laws
that prohibit the individualized assessments that EEOC requires and
consider convicted felons for hire Troopers, jailers, and school teachers
the State must ignore the EEOC enforcement guidance and risk EEOC
enforcement action like the ones the Commission launched against
Case 5:13-cv-00255-C Document Filed 11/04/13
Peoplemark and Freeman. See Enforcement Guidance The national
data provide[ basis for the Commission further investigate such Title
VII disparate impact charges. 16, supra.
interpretation, they not only violate state law, but also must rewrite their
hiring policies taxpayer expense. And these state entities also must begin
evaluating and hiring felons serve law enforcement, teach local
elementary schools, nurse veterans and the disabled, counsel juvenile
detainees, and coach little league.
This would expose the entire State 
including, particular, its most vulnerable citizens class individuals
who have proven track record disobeying the law. And could expose
state entities liability for employee misconduct.
See City Canton
Harris, 489 U.S. 378, 390 n.10 (1989); Doe Hillsboro Indep. Sch. Dist.,
F.3d 1395 (5th Cir. 1996) Common sense recommends and state law
demands that, the interest the safety school children, school officials
investigate the criminal histories prospective school employees.
School Officials total abdication this responsibility constitutes facially
inadequate hiring process. [T]he hiring inadequacies alleged here reveal
deliberate indifference Doe welfare. rev banc, 113 F.3d 1412 (5th
Cir. 1997); Kitzman-Kelley Warner, 203 F.3d 454, 456 (7th Cir. 2000)
(Illinois Department Children and Family Services can liable under
U.S.C. 1983 where did nothing investigate [an abusive caretaker
Case 5:13-cv-00255-C Document Filed 11/04/13
background the President the National Small Business Association
recently stated, State and federal courts will allow potentially devastating
tort lawsuits against businesses that hire felons who commit crimes the
workplace customers homes. Yet the EEOC threatening launch
lawsuits they not hire those same felons. 
But adhering state law also perilous and costly option.
Noncompliance with EEOC interpretation could trigger EEOC
investigation challenge, exposing the State class-like liability. Indeed,
EEOC has publicly adopted strategy prosecuting high-profile cases
against major employers attract attention from the media. See EEOC,
Performance and Accountability Report (2011) [T]he quantity systemic
lawsuits and their representation the total docket expected continue steadily increase. And has proven track record abusive litigation
tactics. See 17, supra. EEOC challenge this nature would
lasting and unwarranted damage the State reputation equalopportunity employer, undermining its efforts recruit and retain employees all races.
Case 5:13-cv-00255-C Document Filed 11/04/13
Declaratory Judgment And Injunction Under U.S.C. 2201 
2202 That The State No-Felons Policies Not Constitute
 Unlawful Employment Practices 
The allegations paragraphs are reincorporated herein.
Texas law and policy impose numerous categorical exclusions
the State ability hire convicted felons.
Those categorical exclusions
 individualized assessments convicted felons job applications.
EEOC Enforcement Guidance purports interpret Title VII
preempt Texas law and policy requiring the individualized assessments 
that state law and policy not allow.
Sections 2201 and 2202 title 28, United States Code,
authorize this Court declare the rights and other legal relations any
interested party cases within its jurisdiction, well issue [f]urther
necessary proper relief based that declaratory judgment. The State
Texas qualifies for declaratory and injunctive relief under U.S.C. 2201 
2202 because EEOC Enforcement Guidance purports preempt state law
and forces state entities and officials choose between evaluating and hiring
convicted felons defiance state law risking investigations, challenges,
and lawsuits from EEOC.
This injury more than sufficient for Article III standing and
brings the case within the subject-matter jurisdiction this Court. See, e.g.,
Case 5:13-cv-00255-C Document Filed 11/04/13
Illinois Dep Transp. Hinson, 122 F.3d 370, 372 (7th Cir. 1997) (State
has standing where complains that federal regulation will preempt one the state laws Alaska United States Dep Transp., 868 F.2d 441,
443 (D.C. Cir. 1989) (agreeing that the State has standing seek declaratory
and injunctive relief because DOT claims that its rules preempt state
consumer protection statutes, [and therefore] the States have suffered injury their sovereign power enforce state law cf. Alfred Snapp Son, Inc. Puerto Rico, 458 U.S. 592, 607 (1982) (stating, the context state
standing parens patriae actions, that States have interest securing
observance the terms under which participates the federal system
The State Texas respectfully requests declaration its right maintain and enforce its laws and policies that absolutely bar convicted
felons (or certain categories convicted felons) from serving police
officers, youth-correction officers, state-supported-living-center employees,
GLO employees, lottery officials, game wardens, school teachers, and any
other job the State and its Legislature deem appropriate. Such absolute bars not constitute unlawful employment practices under U.S.C. 2000e2(k)(1)(A).
The State also seeks declaration and injunction that Ms.
Berrien and her successors cannot enforce the interpretation Title VII that
appears its Enforcement Guidance, nor can Ms. Berrien any other
EEOC official issue right-to-sue letters pursuant that interpretation.
Case 5:13-cv-00255-C Document Filed 11/04/13
Declaratory Judgment Under U.S.C. 706 That EEOC
Enforcement Guidance Unlawful
The allegations paragraphs are reincorporated herein.
EEOC Enforcement Guidance constitutes [a]gency action
made reviewable statute and final agency action for which there
other adequate remedy court. U.S.C. 704.
Section 702 title United States Code, authorizes any person
 adversely affected aggrieved agency action seek judicial relief
against that agency, and Section 706 instructs this Court hold unlawful
and set aside agency action excess statutory jurisdiction, authority,
limitations, U.S.C. 706(2)(C).
The State Texas respectfully asks this Court hold unlawful
and set aside EEOC Enforcement Guidance, the ground that EEOC has
exceeded its statutory authority. See, e.g., American Fed Gov Emps.,
AFL-CIO, Local 3669 Shinseki, 709 F.3d (D.C. Cir. 2013); Emily List
Federal Election Comm 581 F.3d (D.C. Cir. 2009); Financial Planning
Ass SEC, 482 F.3d 481 (D.C. Cir. 2007); Aid Ass for Lutherans U.S.
Postal Serv., 321 F.3d 1166 (D.C. Cir. 2003); Michigan EPA, 268 F.3d 1075
(D.C. Cir. 2001). Congress withheld rulemaking authority from the EEOC,
yet the agency has unlawfully circumvented those limits its power
announcing substantive interpretation Title VII, backed the credible
threat civil prosecution and the issuance right-to-sue letters.
Case 5:13-cv-00255-C Document Filed 11/04/13
And even EEOC had been given rulemaking authority
Congress, promulgation the enforcement guidance constitutes rule
making within the meaning APA, U.S.C. 551(5), and would
required comply with the notice-and-comment procedures U.S.C.
EEOC did not comply with those procedures, and its unlawful
Enforcement Guidance should set aside under U.S.C. 706(2)(C).
Declaratory Judgment Under U.S.C. 2201 2202 That
EEOC Interpretation Title VII Cannot Abrogate State
Sovereign Immunity
The allegations paragraphs are reincorporated herein.
Texas entitled declaratory judgment that disparate
impact liability under Title VII represents impermissible exercise
Congress enforcement powers under the Fourteenth Amendment. See
Coleman Court Appeals Maryland, 132 Ct. 1327, 1337 (2012)
(opinion Kennedy, J.); id. 1338-39 (Scalia, J., concurring the
judgment); Erickson Bd. Governors, 207 F.3d 945, 952 (7th Cir. 2000)
(Easterbrook, J.).
The Equal Protection Clause the Fourteenth
Amendment prohibits discrimination account race, but does not forbid
facially neutral State action with disparate impact race. Washington
Davis, 426 U.S. 229 (1976). Because the disparate-impact theory set forth
EEOC Enforcement Guidance goes far beyond the Fourteenth Amendment
limits State power, cannot provide basis for state liability. See Kimel
Case 5:13-cv-00255-C Document Filed 11/04/13 Florida Bd. Regents, 528 U.S. (2000); Board Trustees the Univ.
Alabama Garrett, 531 U.S. 356 (2001).
Texas further entitled declaration and injunction that
EEOC cannot issue right sue letters persons seeking sue state
officials agencies based the interpretation Title VII set forth
EEOC Enforcement Guidance. DEMAND FOR JUDGMENT
Plaintiff respectfully requests the following relief from the Court: declaratory judgment that the State Texas and its
constituent agencies and its officials are entitled maintain
and enforce laws and policies that absolutely bar convicted
felons, certain category convicted felons, from government
employment, and that the State need not conduct the
 individualized assessments that EEOC purports require. declaratory judgment holding unlawful and setting aside
EEOC Enforcement Guidance. declaration and injunction that EEOC may not issue right-tosue letters persons seeking sue the State Texas any
its constituent agencies state officials based the
interpretation Title VII that appears the Enforcement
Case 5:13-cv-00255-C Document Filed 11/04/13
All other relief which the State Texas may show itself
Respectfully submitted.
Attorney General Texas
First Assistant Attorney General
/s/ Jonathan Mitchell
Solicitor General
Deputy Solicitor General
Assistant Solicitors General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
(512) 936-1700
Dated: November 2013