Case 5:13-cv-00255-C Document 1 Filed 11/04/13 Page 1 of 19 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

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STATE OF TEXAS

)

)

Plaintiff, )

)

vs.

)

)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and )

)

JACQUELINE A. BERRIEN, in her official capacity

)

as Chair of the Equal Opportunity Commission, )

)

Defendants. )

)

Case No. ___________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. The State of Texas seeks declaratory and injunctive relief

against the Equal Employment Opportunity Commission (“EEOC”) and its

recently promulgated “enforcement guidance.” See EEOC, Consideration of

Arrest and Conviction Records in Employment Decisions Under Title VII of

the Civil Rights Act of 1964, No. 915.002 (Apr. 25, 2012) (“Enforcement

Guidance,” attached hereto as Ex. A). EEOC’s Enforcement Guidance

purports to limit the prerogative of employers, including Texas, to exclude

convicted felons from employment. Texas brings this suit under section 10(a)

of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and the

Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. The State of Texas and

its constituent agencies have the sovereign right to impose categorical bans

on the hiring of criminals, and the EEOC has no authority to say otherwise.

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I. THE PARTIES 2. The Plaintiff is the State of Texas. Through its constituent agencies, the State employs hundreds of thousands of people. 3. The Defendants are the EEOC, a federal law-enforcement agency, as well as Jacqueline A. Berrien, the Chair of EEOC, who is sued in her official capacity. The EEOC is empowered to bring civil enforcement actions against employers for violating Title VII of the Civil Rights Act of 1964 (“Title VII”). See 42 U.S.C. § 2000e-6. The EEOC also may issue “rightto-sue” letters that allow private individuals to sue their employers for violating EEOC’s interpretation of Title VII. See id. § 2000e-5(f).
II. JURISDICTION AND VENUE 4. The Court has federal-question jurisdiction under 28 U.S.C. § 1331 because this suit concerns the scope of EEOC’s authority under Title VII, and it also arises under the APA. The Court also has jurisdiction under 28 U.S.C. § 1346 because the EEOC is an agency of the United States. Finally, the Court has jurisdiction to compel an officer or employee of the EEOC to perform his or her duty under 28 U.S.C. § 1361. 5. Venue is proper in this District under 28 U.S.C. § 1391(e) because the State is a resident of this District, the State and its constituent agencies have employees in this District, and a substantial part of the events or omissions giving rise to the State’s claim against EEOC’s unlawful agency action occurred in this District.
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6. This Court is authorized to award the requested declaratory and injunctive relief under the APA, the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and 28 U.S.C. § 1361.
III. FACTUAL ALLEGATIONS A. The EEOC and its Enforcement Guidance 7. Congress has denied EEOC the authority to promulgate substantive rules interpreting Title VII. General Electric Co. v. Gilbert, 429 U.S. 125, 140–46 (1976). EEOC has authority to issue only “procedural regulations” to carry out the provisions of Title VII. See 42 U.S.C. § 2000e12(a). 8. On April 25, 2012, EEOC’s Commissioners adopted, by a 4 to 1 vote, a document purporting to offer “enforcement guidance” for employers’ use of arrest or conviction records. See Ex. A. That document directs employers to conform their hiring practices to EEOC’s “guidance”; it directs individuals to file charges of discrimination for alleged violations of EEOC’s “guidance”; and it directs EEOC staff to bring the full weight of the United States’ enforcement authority to bear on those employers who might disobey the Commission’s “guidance.” In particular: “The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating
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discrimination charges involving the use of criminal records in employment decisions.” Id. at 3.
9. The Enforcement Guidance reflects EEOC’s substantive interpretation of Title VII. In EEOC’s view, hiring policies or practices that categorically exclude all convicted felons create an unlawful “disparate impact” under Title VII, and the statute instead mandates that all employers conduct “individualized assessments” of convicted felons’ job applications. Id. at 9, 18–20. If an employer refuses to hire a convicted felon, it is the employer’s burden to prove that the felony disqualification is “job related for the position in question and consistent with business necessity.” Id. at 8; see also id. at 13–14 (urging employers not to “ask about convictions on job applications”). The Enforcement Guidance warns that EEOC will investigate and challenge employers who use felony convictions as “an absolute bar to employment.” Id. at 11 n.90. And it further cautions that “[a]n employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact.” Id. at 10.
10. The Enforcement Guidance also instructs employers, including the State of Texas, to ignore state and local laws that disqualify convicted felons from holding certain jobs, to the extent those state and local laws conflict with EEOC’s interpretation of Title VII. See id. at 24 (“States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. . . .
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Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII.”).
11. EEOC already has launched hundreds of investigations against employers who, in EEOC’s estimation, are insufficiently solicitous of convicted felons who want jobs.
12. For example, EEOC is prosecuting G4S Secure Solutions (USA), Inc. (“G4S”), a 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 to work as 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” of every criminal background check that it performed over a period of decades.
13. On June 11, 2013, EEOC used its Enforcement Guidance to sue the national discount retailer Dollar General. See Compl., EEOC v. Dolgencorp LLC d/b/a Dollar General, Case No. 1:13-cv-4307 (N.D. Ill.). EEOC brought suit on behalf of 8,400 employees who were denied employment on account of their felony convictions. Id. at 4. For example, EEOC’s lead plaintiff was denied employment as a “Stocker/Cashier” because her criminal-background check revealed two drug-related convictions. Id. at 5. In EEOC’s view, however, Dollar General failed to carry its burden to prove that it had a “business necessity” not to hire twice-convicted drug
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abusers to handle the company’s money, serve the company’s customers, and manage the company’s assets. Id.
14. Also on June 11, 2013, EEOC used its Enforcement Guidance to sue the carmaker BMW. See Compl., EEOC v. BMW Manufacturing Co., Case No. 7:13-cv-01583 (D.S.C.). EEOC sued on behalf of felons who were fired from their jobs at a BMW manufacturing facility. Id. at 2. BMW fired those employees because they had been convicted of various crimes including murder, rape, and other offenses involving “theft, dishonesty, and moral turpitude.” Id. at 5 (internal quotation marks omitted). In EEOC’s view, however, BMW failed to carry its burden to prove that it had a “business necessity” not to hire violent felons and convicted thieves to work in a warehouse with millions of dollars’ worth of luxury automobiles. Id. at 7.
15. The targets of these investigations and prosecutions have been subjected to sanctionable litigation tactics. For example, EEOC brought a disparate-impact lawsuit against a temporary staffing company named Peoplemark because it refused to hire a woman named Sherri Scott after her criminal-background check disclosed that she was “a two-time felon with convictions for housebreaking and larceny.” Order, EEOC v. Peoplemark, Inc., Case No. 1:08-cv-907 (W.D. Mich. Mar. 31, 2011). In an attempt to prove that Peoplemark’s hiring policy created a disparate impact, EEOC conducted a three-year investigation of the company and subpoenaed 18,000 pages of corporate documents. Its investigation uncovered nothing, and
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Peoplemark’s decision not to hire Sherri Scott proved prudent when she went back to prison in the middle of EEOC’s investigation for a third felony conviction (this one for felonious assault). Id. at 6 n.2. EEOC nonetheless continued to litigate against Peoplemark in an effort to harass the company and to “drive up [Peoplemark’s] costs.” Id. at 9. The United States District Court for the Western District of Michigan sanctioned EEOC by dismissing its complaint with prejudice, awarding Peoplemark over $750,000 in fees and costs, and concluding that EEOC’s conduct “falls between frivolous and insulting.” Id. at 3, 21 n.8, 22.
16. Similarly, EEOC sued a trade-show-and-convention company called Freeman for refusing to hire felons. In the course of that lawsuit, EEOC committed numerous discovery violations. Only after forcing Freeman to file a 222-page motion to compel did EEOC finally abandon its recalcitrance. Even then, however, the Commission did not abandon its abusive litigation tactics. EEOC retaliated by imposing overbroad discovery demands on Freeman, which the United States District Court of the District of Maryland eventually disallowed—but only after Freeman was forced to spend substantial time and money in a discovery dispute occasioned by EEOC’s attempts to force the company to hire felons.
17. The soda company Pepsi Beverages avoided EEOC’s abusive litigation tactics, but did so only by caving to the Commission’s demands. EEOC accused Pepsi of creating an unlawful “disparate impact” by refusing
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to hire approximately 300 individuals with criminal backgrounds. In January 2012, EEOC forced Pepsi to avoid that unintentional disparate impact by committing intentional racial discrimination and hiring those 300 convicted criminals.
B. The State and its Employees 18. The State of Texas employs hundreds of thousands of people. For many state jobs, state law and longstanding hiring policies impose absolute bans on hiring convicted felons (or in some instances persons convicted of certain categories of felonies). These absolute exclusions do not allow the sort of “individualized assessments” that EEOC’s Enforcement Guidance purports to require. Cf. Ex. A, at 18–20. 19. For example, the Texas Department of Public Safety (“DPS”) is a state agency. It employs hundreds of Texas State Troopers and other law enforcement officers throughout the State, including in this District. Under Texas law, “[a] person who has been convicted of a felony is disqualified to be an officer” for any law-enforcement agency anywhere in the State. TEX. OCC. CODE § 1701.312(a). And DPS refuses to hire anyone convicted of any felony or certain misdemeanors. See DPS, Employment/Career Opportunities, http:// agency.governmentjobs.com/txdps/default.cfm (“Background investigations, including criminal history record checks, are conducted on all prospective employees. Felony convictions and certain misdemeanor convictions will be
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cause for immediate rejection.”); DPS, Disqualifiers, http://www.txdps.state. tx.us/trainingacademy/recruiting/disqualifiers.htm.
20. The Texas Department of Aging and Disability Services (“DADS”) is a state agency. It administers various programs and facilities for the benefit of elderly and disabled individuals throughout the State, including in this District. DADS “applies absolute criminal bars to employment.” DADS, Bars to Employment with DADS, http://www.dads. state.tx.us/hiringbars/index.html. The “bars” imposed by DADS include a long and wide-ranging list of disqualifying felonies statutorily specified by the Texas Legislature and others specified by the agency. See id.
21. The Texas General Land Office (“GLO”) is a state agency. It administers public lands and oversees various veterans’ affairs throughout the State, including in this District. “[T]o prudently manage its workforce,” GLO imposes criminal-background checks on “all job applicants selected for hire and all volunteer workers, regardless of their positions.” GLO, Legislative Appropriations Request FY 2014–2015, at 11–12 (Aug. 23, 2012), http://www.glo.texas.gov/GLO/_documents/administration/LAR-2014-2015.pdf. And to protect the brave veterans who live in GLO-administered Texas State Veterans Homes, the Texas Legislature has imposed absolute bans on employing certain convicted felons who otherwise might want to work in those facilities. See TEX. HEALTH & SAFETY CODE ch. 250.
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22. The Texas Juvenile Justice Department (“JJD”) is a state agency. It administers correctional programs and institutions for juveniles throughout the State, including in this District. JJD applies absolute bars to employment for any applicant convicted of or arrested for certain felonies, “[r]egardless of the nature of the position.” JJD Personnel Policy and Procedure Manual, Background Checks, at d.2.B.ii, http://www.tjjd.texas.gov/ policies/prs/prs05/prs0513.html. And it imposes even more sweeping absolute bars to employment for criminals who want to work in “correctional series positions.” Id. at d.2.B.iii.
23. The Texas Lottery Commission (“TLC”) is a state agency. It administers Texas’s statewide lottery system throughout the State, including in this District. TLC imposes an absolute bar to hiring anyone convicted of any felony or certain other designated offenses within the last ten years.
24. The Parks and Wildlife Department (“PWD”) is a state agency. It administers numerous parks and wildlife programs and employs game wardens throughout the State, including in this District. Under Texas law, the approximately 500 game wardens employed by PWD are “peace officers,” and as such, they fall under the same absolute no-felons policy that applies to other law-enforcement officers throughout the State. See 31 TEX. ADMIN. CODE § 55.802(1); TEX. OCC. CODE §§ 1701.001(3)–(4), 1701.312(a); TEX. PARKS & WILDLIFE CODE § 11.019. PWD imposes an absolute ban on hiring any game warden who ever has been convicted of a felony or Class A
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misdemeanor. PWD, Requirements for Game Warden, http://www.tpwd.

state.tx.us/warden/career_opportunities/requirements.phtml.

PWD also

imposes absolute prohibitions on game-warden applicants who have been

convicted of certain lesser offenses. Id.

25. In addition, the Texas Legislature prohibits school districts from

hiring anyone convicted of certain felonies. See TEX. EDUC. CODE § 22.085.

And many local school districts throughout the State maintain an absolute

exclusion on hiring convicted felons to teach or coach their students. For

example, the Austin Independent School District imposes an absolute ban on

hiring anyone convicted of any felony at any point in the past. See Austin

ISD, Board Policy Manual, Personnel-Employment Practices, http://pol.tasb.

org/Policy/ Code/1146?filter=DC.

C. Effect of the EEOC’s Enforcement Guidance on the State and its Employees
26. The EEOC’s Enforcement Guidance has a direct and immediate

impact on the day-to-day business of the State, its agencies, and its political

subdivisions. EEOC has propounded a substantive interpretation of Title VII

that purports to preempt the State’s sovereign power to enact and abide by

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 as Troopers, jailers, and school teachers—or

the State must ignore the EEOC’s enforcement guidance and risk an EEOC

enforcement action like the ones the Commission launched against

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Peoplemark and Freeman. See Enforcement Guidance at 1 (“The national data provide[ ] a basis for the Commission to further investigate such Title VII disparate impact charges.”); ¶¶ 15–16, supra.
27. If state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must rewrite their hiring policies at taxpayer expense. And these state entities also must begin evaluating and hiring felons to serve in law enforcement, teach in local elementary schools, nurse veterans and the disabled, counsel juvenile detainees, and coach little league. This would expose the entire State— including, in particular, its most vulnerable citizens—to a class of individuals who have a proven track record of disobeying the law. And it could expose state entities to liability for employee misconduct. See City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989); Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395 (5th Cir. 1996) (“Common sense recommends—and state law demands—that, in the interest of the safety of school children, school officials investigate the criminal histories of prospective school employees. The School Officials’ total abdication of this responsibility constitutes a facially inadequate hiring process. . . . [T]he hiring inadequacies alleged here reveal a deliberate indifference to Doe’s welfare.”), rev’d en banc, 113 F.3d 1412 (5th Cir. 1997); Kitzman-Kelley v. Warner, 203 F.3d 454, 456 (7th Cir. 2000) (Illinois Department of Children and Family Services can be liable under 42 U.S.C. § 1983 where it “did nothing to investigate [an abusive caretaker’s]
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background”). As the President of 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 at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.”
28. But adhering to state law also is a perilous and costly option. Noncompliance with EEOC’s interpretation could trigger an EEOC investigation or challenge, exposing the State to class-like liability. Indeed, EEOC has publicly adopted a strategy of prosecuting high-profile cases against major employers to attract attention from the media. See EEOC, Performance and Accountability Report (2011) (“[T]he quantity of systemic lawsuits and their representation on the total docket is expected to continue to steadily increase.”). And it has a proven track record of abusive litigation tactics. See ¶¶ 11–17, supra. An EEOC challenge of this nature would do lasting and unwarranted damage to the State’s reputation as an equalopportunity employer, undermining its efforts to recruit and retain employees of all races.
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IV. CLAIMS FOR RELIEF COUNT ONE
Declaratory Judgment And Injunction Under 28 U.S.C. §§ 2201– 2202 That The State’s No-Felons Policies Do Not Constitute “Unlawful Employment Practices” 29. The allegations in paragraphs 1–28 are reincorporated herein. 30. Texas law and policy impose numerous categorical exclusions on the State’s ability to hire convicted felons. Those categorical exclusions prohibit the State, its agencies, and its officials from conducting “individualized assessments” of convicted felons’ job applications. 31. EEOC’s Enforcement Guidance purports to interpret Title VII to preempt Texas’s law and policy by requiring the “individualized assessments” that state law and policy do not allow. 32. Sections 2201 and 2202 of title 28, United States Code, authorize this Court to “declare the rights and other legal relations of any interested party” in cases within its jurisdiction, as well as to issue “[f]urther necessary or proper relief” based on that declaratory judgment. The State of Texas qualifies for declaratory and injunctive relief under 28 U.S.C. §§ 2201– 2202 because EEOC’s Enforcement Guidance purports to preempt state law and forces state entities and officials to choose between evaluating and hiring convicted felons in defiance of state law or risking investigations, challenges, and lawsuits from EEOC. 33. This injury is more than sufficient for Article III standing and brings the case within the subject-matter jurisdiction of this Court. See, e.g.,
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Illinois Dep’t of Transp. v. Hinson, 122 F.3d 370, 372 (7th Cir. 1997) (State has standing where it “complains that a federal regulation will preempt one of the state’s laws”); Alaska v. United States Dep’t of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989) (agreeing that the State has standing to seek declaratory and injunctive relief “because DOT claims that its rules preempt state consumer protection statutes, [and therefore] the States have suffered injury to their sovereign power to enforce state law”); cf. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607–08 (1982) (stating, in the context of state standing in parens patriae actions, that States have an “interest in securing observance of the terms under which it participates in the federal system”).
34. The State of Texas respectfully requests a declaration of its right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories of convicted felons) from serving as 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 do not constitute “unlawful employment practices” under 42 U.S.C. § 2000e2(k)(1)(A).
35. The State also seeks a declaration and injunction that Ms. Berrien and her successors cannot enforce the interpretation of Title VII that appears in its Enforcement Guidance, nor can Ms. Berrien or any other EEOC official issue right-to-sue letters pursuant to that interpretation.
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COUNT TWO Declaratory Judgment Under 28 U.S.C. § 706 That EEOC’s Enforcement Guidance Is Unlawful 36. The allegations in paragraphs 1–35 are reincorporated herein. 37. EEOC’s Enforcement Guidance constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 38. Section 702 of title 5, United States Code, authorizes any person “adversely affected or aggrieved by agency action” to seek judicial relief against that agency, and Section 706 instructs this Court to “hold unlawful and set aside” agency action “in excess of statutory jurisdiction, authority, or limitations,” 5 U.S.C. § 706(2)(C). 39. The State of Texas respectfully asks this Court to hold unlawful and set aside EEOC’s Enforcement Guidance, on the ground that EEOC has exceeded its statutory authority. See, e.g., American Fed’n of Gov’t Emps., AFL-CIO, Local 3669 v. Shinseki, 709 F.3d 29 (D.C. Cir. 2013); Emily’s List v. Federal Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009); Financial Planning Ass’n v. SEC, 482 F.3d 481 (D.C. Cir. 2007); Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166 (D.C. Cir. 2003); Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001). Congress withheld rulemaking authority from the EEOC, yet the agency has unlawfully circumvented those limits on its power by announcing a substantive interpretation of Title VII, backed by the credible threat of civil prosecution and the issuance of right-to-sue letters.
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40. And even if EEOC had been given rulemaking authority by Congress, promulgation of the enforcement guidance constitutes “rule making” within the meaning of APA, 5 U.S.C. § 551(5), and would be required to comply with the notice-and-comment procedures of 5 U.S.C. § 553. EEOC did not comply with those procedures, and its unlawful Enforcement Guidance should be set aside under 5 U.S.C. § 706(2)(C).
COUNT THREE Declaratory Judgment Under 28 U.S.C. §§ 2201–2202 That EEOC’s Interpretation Of Title VII Cannot Abrogate State Sovereign Immunity 41. The allegations in paragraphs 1–40 are reincorporated herein. 42. Texas is entitled to a declaratory judgment that disparate impact liability under Title VII represents an impermissible exercise of Congress’s enforcement powers under the Fourteenth Amendment. See Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327, 1337 (2012) (opinion of Kennedy, J.); id. at 1338-39 (Scalia, J., concurring in the judgment); Erickson v. Bd. of Governors, 207 F.3d 945, 952 (7th Cir. 2000) (Easterbrook, J.). The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination on account of race, but it does not forbid facially neutral State action with a disparate impact on race. Washington v. Davis, 426 U.S. 229 (1976). Because the disparate-impact theory set forth in EEOC’s Enforcement Guidance goes far beyond the Fourteenth Amendment’s limits on State power, it cannot provide a basis for state liability. See Kimel
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v. Florida Bd. of Regents, 528 U.S. 62 (2000); Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001).
43. Texas is further entitled to a declaration and injunction that EEOC cannot issue “right to sue” letters to persons seeking to sue state officials or agencies based on the interpretation of Title VII set forth in EEOC’s Enforcement Guidance.
V. DEMAND FOR JUDGMENT Plaintiff respectfully requests the following relief from the Court:
A. A declaratory judgment that the State of Texas and its constituent agencies and its officials are entitled to maintain and enforce laws and policies that absolutely bar convicted felons, or a certain category of convicted felons, from government employment, and that the State need not conduct the “individualized assessments” that EEOC purports to require.
B. A declaratory judgment holding unlawful and setting aside EEOC’s Enforcement Guidance.
C. A declaration and injunction that EEOC may not issue right-tosue letters to persons seeking to sue the State of Texas or any of its constituent agencies or state officials based on the interpretation of Title VII that appears in the Enforcement Guidance.
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D. All other relief to which the State of Texas may show itself to be entitled. Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General ANDREW S. OLDHAM Deputy Solicitor General ARTHUR C. D’ANDREA RICHARD B. FARRER DUSTIN M. HOWELL Assistant Solicitors General 209 West 14th Street P.O. Box 12548 Austin, Texas 70711-2548 (512) 936-1700 Dated: November 4, 2013
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 Case 5:13-cv-00255-C Document 37 Filed 08/20/14 Page 1 of 1 PageID 865

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

STATE OF TEXAS, Plaintiff,
v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Defendants.

) ) ) ) ) ) ) ) ) ) Civil Action No. 5:13-CV-255-C

JUDGMENT

For the reasons stated in the Court's order of even date,

IT IS ORDERED, ADJUDGED, AND DECREED that the above-styled and -numbered

case is DISMISSED without prejudice for lack of subject-matter jurisdiction.

f! Jo Dated this

day ofAugust, 2014.

 
 Case 5:13-cv-00255-C Document 42 Filed 09/23/16 Page 1 of 2 PageID 879

U.S. mSTf<ICT COURT NOKI!IERN DISTRICT OF TEXAS
FJlj~
SEP 2 3 2016

NITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CLERK U.S. DISTRICT COU

No. 14-10949

United States Court of Appeals Fifth Circuit
FILED
September 23, 2016

STATE OF TEXAS,

Lyle W. Cayce Clerk

Plaintiff - Appellant

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JENNY R. YANG, in her official capacity as Chair of the Equal Employment Opportunity Commission; LORETTA LYNCH, U.S. ATTORNEY GENERAL,

Defendants - Appellees

Appeal from the United States District Court for the Northern District of Texas

ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion 06/27/16, 5th Cir.,

F.3d ---1

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges. PER CURIAM:
As we noted in our opinion, Texas v. EEOC, No. 14-10949, 2016 WL 3524242, at *7 (5th Cir. June 27, 2016), shortly before the opinion's issuance the Supreme Court decided U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807 (2016), which held in the context of the Clean Water Act that a jurisdictional determination ("JD") is a final agency action that is subject to

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No. 14-10949 judicial review under the Administrative Procedure Act, 5 U.S.C. § 704. Hawkes, 136 S. Ct. at 1816.
In Belle Co., L.L.C. v. U.S. Army Corps of Eng'rs, 761 F.3d 383 (5th Cir. 2014), also cited in our opinion, our court had held that the JD in that case was not a final decision. Belle Co. petitioned for certiorari, which the Supreme Court granted. In the light of its opinion in Hawkes, the Court vacated the judgment and remanded Belle Co. to our court. 136 S. Ct. 2427 (2016) (mem.). The panel then remanded the case to the district court for further proceedings consistent with the Supreme Court's decision in Hawkes. Belle Co., L.L. C. v. U.S. Army Corps of Eng'rs, No. 13-30262, 2016 WL 4073301, at *1 (5th Cir. July 29, 2016).
Both Belle Co. and the instant case relate closely to the issue that the Supreme Court decided in Hawkes. Given this similarity, and given that the district court has not had the opportunity to apply Hawkes to the facts of this case, we conclude that the importance of the issue and the interest of uniformity of our precedent require that we, like the Belle Co. panel, remand this case for further consideration in the light of Hawkes. We recognize that Hawkes may or may not affect other issues raised in this appeal, and we leave it to the district court in the first instance to reconsider this case, and its opinion, in its entirety and to address the implications of Hawkes for this case.
Accordingly, we WITHDRAW our prior opinion, VACATE the district court's judgment dismissing the complaint, and REMAND this case to the district court for such further proceedings as, in its discretion, are required.
PETITION GRANTED; OPINION WITHDRAWN; JUDGMENT VACATED, AND CASE REMANDED.
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FILED
July 28, 2017
KAREN MITCHELL CLERK, U.S. DISTRICT COURT

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EXH I BI TS T AB
EEOC, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, No. 915.002 (Apr. 25, 2012).....................................................................................................................A
FBI, Employment Disqualifiers, https:/ / www.fbijobs.gov/ 51.asp .......................................................... B EEOC, “Charge of Discrimination” (Nov. 1, 2013)................................................................................... C EEOC, Dismissal and Notice of Rights (Dec. 23, 2013)............................................................................D

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EXHIBIT A

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EEOC Enforcement Guidance

Number 915.002 Date 4/25/2012

1. SUBJECT: Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
2. PURPOSE: The purpose of this Enforcement Guidance is to consolidate and update the U.S. Equal Employment Opportunity Commission’s guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: This Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: Office of Legal Counsel.

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Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
Table of Contents

I. Summary

1

II. Introduction

3

III. Background

4

A. Criminal History Records

4

B. Employers’ Use of Criminal History Information

6

C. The EEOC’s Interest in Employers’ Use of Criminal Records in

Employment Screening

6

IV. Disparate Treatment Discrimination and Criminal Records

6

V. Disparate Impact Discrimination and Criminal Records

8

A. Determining Disparate Impact of Policies or Practices that Screen

Individuals Based on Records of Criminal Conduct

9

1. Identifying the Practice or Policy

9

2. Determining Disparate Impact

9

B. Job Related for the Position in Question and Consistent with

Business Necessity

10

1. Generally

10

2. Arrests

12

3. Convictions

13

4. Determining Whether a Criminal Conduct Exclusion Is Job

Related and Consistent with Business Necessity

14

5. Validation

14

6. Detailed Discussion of the Green Factors and Criminal

Conduct Screens

15

a. The Nature and Gravity of the Offense or Conduct

15

b. The Time that Has Passed Since the Offense, Conduct

and/or Completion of the Sentence

15

c. The Nature of the Job Held or Sought

16

7. Examples of Criminal Conduct Exclusions that Do Not Consider

the Green Factors

16

8. Targeted Exclusions that Are Guided by the Green Factors

17

9. Individualized Assessment

18

C.

Less Discriminatory Alternatives

20

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VI. Positions Subject to Federal Prohibitions or Restrictions on Individuals

with Records of Certain Criminal Conduct

20

A. Hiring in Certain Industries

20

B. Obtaining Occupational Licenses

21

C. Waiving or Appealing Federally Imposed Occupational

Restrictions

21

D. Security Clearances

23

E. Working for the Federal Government

23

VII. Positions Subject to State and Local Prohibitions or Restrictions on Individuals

with Records of Certain Criminal Conduct

24

VIII. Employer Best Practices

25

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I. Summary
• An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
• The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago.
• The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records, employer practices, and Title VII.
• The Guidance discusses the differences between arrest and conviction records.
• The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
• In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
• The Guidance discusses disparate treatment and disparate impact analysis under Title VII.
• A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
• An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
o National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
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o Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows: • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).
• Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
• State and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-7.
• The Guidance concludes with best practices for employers.
2

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II. Introduction
The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin.1 This Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.2
In the last twenty years, there has been a significant increase in the number of Americans who have had contact3 with the criminal justice system4 and, concomitantly, a major increase in the number of people with criminal records in the working-age population.5 In 1991, only 1.8% of the adult population had served time in prison.6 After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).7 By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail.8 The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.9
Arrest and incarceration rates are particularly high for African American and Hispanic men.10 African Americans and Hispanics11 are arrested at a rate that is 2 to 3 times their proportion of the general population.12 Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime;13 by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.14
The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment.15 This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments,16 the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions. Thus, this Enforcement Guidance will supersede the Commission’s previous policy statements on this issue.
The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.
3

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III. Background

The contextual framework for the Title VII analysis in this Enforcement Guidance includes how criminal record information is collected and recorded, why employers use criminal records, and the EEOC’s interest in such criminal record screening.

A. Criminal History Records
Criminal history information can be obtained from a wide variety of sources including, but not limited to, the following:

•

Court Records. Courthouses maintain records relating to criminal charges and

convictions, including arraignments, trials, pleas, and other dispositions.17

Searching county courthouse records typically provides the most complete criminal history.18 Many county courthouse records must be retrieved on-site,19 but some courthouses offer their records online.20 Information about federal

crimes such as interstate drug trafficking, financial fraud, bank robbery, and

crimes against the government may be found online in federal court records by

searching the federal courts’ Public Access to Court Electronic Records or Case Management/Electronic Case Files.21

•

Law Enforcement and Corrections Agency Records. Law enforcement agencies

such as state police agencies and corrections agencies may allow the public to

access their records, including records of complaints, investigations, arrests, indictments, and periods of incarceration, probation, and parole.22 Each agency

may differ with respect to how and where the records may be searched, and whether they are indexed.23

•

Registries or Watch Lists. Some government entities maintain publicly available

lists of individuals who have been convicted of, or are suspected of having

committed, a certain type of crime. Examples of such lists include state and federal sex offender registries and lists of individuals with outstanding warrants.24

•

State Criminal Record Repositories. Most states maintain their own centralized

repositories of criminal records, which include records that are submitted by most or all of their criminal justice agencies, including their county courthouses.25 States differ with respect to the types of records included in the repository,26 the completeness of the records,27 the frequency with which they are updated,28 and

whether they permit the public to search the records by name, by fingerprint, or both.29 Some states permit employers (or third-parties acting on their behalf) to access these records, often for a fee.30 Others limit access to certain types of records,31 and still others deny access altogether.32

•

The Interstate Identification Index (III). The Federal Bureau of Investigation

(FBI) maintains the most comprehensive collection of criminal records in the

nation, called the “Interstate Identification Index” (III). The III database compiles

4

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records from each of the state repositories, as well as records from federal and international criminal justice agencies.33
The FBI’s III database may be accessed for employment purposes by:
• the federal government;34
• employers in certain industries that are regulated by the federal government, such as “the banking, nursing home, securities, nuclear energy, and private security guard industries; as well as required security screenings by federal agencies of airport workers, HAZMAT truck drivers and other transportation workers”;35 and
• employers in certain industries “that the state has sought to regulate, such as persons employed as civil servants, day care, school, or nursing home workers, taxi drivers, private security guards, or members of regulated professions.” 36
Recent studies have found that a significant number of state and federal criminal record databases include incomplete criminal records.
A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests.37 A 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI’s III database were associated with a final disposition. 38
Additionally, reports have documented that criminal records may be inaccurate.
One report found that even if public access to criminal records has been restricted by a court order to seal and/or expunge such records, this does not guarantee that private companies also will purge the information from their systems or that the event will be erased from media archives.39 Another report found that criminal background checks may produce inaccurate results because criminal records may lack “unique” information or because of “misspellings, clerical errors or intentionally inaccurate identification information provided by search subjects who wish to avoid discovery of their prior criminal activities.” 40
Employers performing background checks to screen applicants or employees may attempt to search these governmental sources themselves or conduct a simple Internet search, but they often rely on third-party background screening businesses.41 Businesses that sell criminal history information to employers are “consumer reporting agencies” (CRAs)42 if they provide the information in “consumer reports”43 under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA). Under FCRA, a CRA generally may not report records of arrests that did not result in entry of a judgment of conviction, where the arrests occurred more than seven years ago.44
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However, they may report convictions indefinitely.45
CRAs often maintain their own proprietary databases that compile information from various sources, such as those described above, depending on the extent to which the business has purchased or otherwise obtained access to data.46 Such databases vary with respect to the geographic area covered, the type of information included (e.g., information about arrests, convictions, prison terms, or specialized information for a subset of employers such as information about workplace theft or shoplifting cases for retail employers47), the sources of information used (e.g., county databases, law enforcement agency records, sex offender registries), and the frequency with which they are updated. They also may be missing certain types of disposition information, such as updated convictions, sealing or expungement orders, or orders for entry into a diversion program.48
B. Employers’ Use of Criminal History Information
In one survey, a total of 92% of responding employers stated that they subjected all or some of their job candidates to criminal background checks.49 Employers have reported that their use of criminal history information is related to ongoing efforts to combat theft and fraud,50 as well as heightened concerns about workplace violence51 and potential liability for negligent hiring.52 Employers also cite federal laws as well as state and local laws53 as reasons for using criminal background checks.
C. The EEOC’s Interest in Employers’ Use of Criminal Records in Employment Screening
The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is discussed in Section V.
IV. Disparate Treatment Discrimination and Criminal Records
A covered employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis.54 For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.55
Example 1: Disparate Treatment Based on Race. John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and
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distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.
After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies. However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.
Title VII prohibits “not only decisions driven by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking . . . .”56 Thus, an employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality—rather than qualifications and suitability for the position—is unlawful disparate treatment that violates Title VII.57
Example 2: Disparate Treatment Based on National Origin. Tad, who is White, and Nelson, who is Latino, are both recent high school graduates with grade point averages above 4.0 and college plans. While Nelson has successfully worked full-time for a landscaping company during the summers, Tad only held occasional lawn-mowing and camp-counselor jobs. In an interview for a research job with Meaningful and Paid Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at age 16 for accessing his school’s computer system over the course of several months without authorization and changing his classmates’ grades. Nelson, in an interview with MPII, emphasizes his successful prior work experience, from which he has good references, but also discloses that, at age 16, he pled guilty to breaking and entering into his high school as part of a class prank that caused little damage to school property. Neither Tad nor Nelson had subsequent contact with the criminal justice system.
The hiring manager at MPII invites Tad for a second interview, despite his record of criminal conduct. However, the same hiring manager sends Nelson a rejection notice, saying to a colleague that Nelson is only qualified to do manual labor and, moreover, that he has a criminal record. In light of the evidence showing that Nelson’s and Tad’s educational backgrounds are similar, that Nelson’s work experience is more extensive, and that Tad’s criminal conduct is more indicative of untrustworthiness, MPII has failed to state a legitimate, nondiscriminatory reason for rejecting Nelson. If Nelson filed a Title VII charge alleging disparate treatment based on national origin and the EEOC’s investigation
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confirmed these facts, the EEOC would find reasonable cause to believe that discrimination occurred.
There are several kinds of evidence that may be used to establish that race, national origin, or other protected characteristics motivated an employer’s use of criminal records in a selection decision, including, but not limited to:
• Biased statements. Comments by the employer or decisionmaker that are derogatory with respect to the charging party’s protected group, or that express group-related stereotypes about criminality, might be evidence that such biases affected the evaluation of the applicant’s or employee’s criminal record.
• Inconsistencies in the hiring process. Evidence that the employer requested criminal history information more often for individuals with certain racial or ethnic backgrounds, or gave Whites but not racial minorities the opportunity to explain their criminal history, would support a showing of disparate treatment.
• Similarly situated comparators (individuals who are similar to the charging party in relevant respects, except for membership in the protected group). Comparators may include people in similar positions, former employees, and people chosen for a position over the charging party. The fact that a charging party was treated differently than individuals who are not in the charging party’s protected group by, for example, being subjected to more or different criminal background checks or to different standards for evaluating criminal history, would be evidence of disparate treatment.
• Employment testing. Matched-pair testing may reveal that candidates are being treated differently because of a protected status.58
• Statistical evidence. Statistical analysis derived from an examination of the employer’s applicant data, workforce data, and/or third party criminal background history data may help to determine if the employer counts criminal history information more heavily against members of a protected group.
V. Disparate Impact Discrimination and Criminal Records
A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.59
In its 1971 Griggs v. Duke Power Company decision, the Supreme Court first recognized that Title VII permits disparate impact claims.60 The Griggs Court explained that “[Title VII] proscribes . . . practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited.”61 In 1991,
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Congress amended Title VII to codify this analysis of discrimination and its burdens of proof.62 Title VII, as amended, states:
An unlawful employment practice based on disparate impact is established . . . if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. . . .63
With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.
A. Determining Disparate Impact of Policies or Practices that Screen Individuals Based on Records of Criminal Conduct
1. Identifying the Policy or Practice
The first step in disparate impact analysis is to identify the particular policy or practice that causes the unlawful disparate impact. For criminal conduct exclusions, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. More specifically, such information also includes which offenses or classes of offenses were reported to the employer (e.g., all felonies, all drug offenses); whether convictions (including sealed and/or expunged convictions), arrests, charges, or other criminal incidents were reported; how far back in time the reports reached (e.g., the last five, ten, or twenty years); and the jobs for which the criminal background screening was conducted.64 Training or guidance documents used by the employer also are relevant, because they may specify which types of criminal history information to gather for particular jobs, how to gather the data, and how to evaluate the information after it is obtained.
2. Determining Disparate Impact
Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans,65 even though African Americans only comprised approximately 14% of the general population.66 In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population.67 Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.68
African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.)
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is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged.69 This rate climbs to 1 in 6 (or 17.2%) for Hispanic men.70 For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%).71 Based on a stateby-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites,72 and 7 states had a Black-to-White ratio of incarceration that was 10 to1.73 In 2010, Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men.74
National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate impact charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s). For example, an employer may present regional or local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s particular geographic area. An employer also may use its own applicant data to demonstrate that its policy or practice did not cause a disparate impact. The Commission will assess relevant evidence when making a determination of disparate impact, including applicant flow information maintained pursuant to the Uniform Guidelines on Employee Selection Procedures,75 workforce data, criminal history background check data, demographic availability statistics, incarceration/conviction data, and/or relevant labor market statistics.76
An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact. In Connecticut v. Teal, the Supreme Court held that a “bottom line” racial balance in the workforce does not preclude employees from establishing a prima facie case of disparate impact; nor does it provide employers with a defense.77 The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities.78
Finally, in determining disparate impact, the Commission will assess the probative value of an employer’s applicant data. As the Supreme Court stated in Dothard v. Rawlinson, an employer’s “application process might itself not adequately reflect the actual potential applicant pool since otherwise qualified people might be discouraged from applying” because of an alleged discriminatory policy or practice.79 Therefore, the Commission will closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. Relevant evidence may come from ex-offender employment programs, individual testimony, employer statements, evidence of employer recruitment practices, or publicly posted notices, among other sources.80 The Commission will determine the persuasiveness of such evidence on a case-by-case basis.
B. Job Related For the Position in Question and Consistent with Business Necessity
1. Generally
After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of
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production and persuasion to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”81 In the legislative
history of the 1991 Civil Rights Act, Congress referred to Griggs and its progeny such as Albemarle Paper Company v. Moody82 and Dothard83 to explain how this standard should be construed.84 The Griggs Court stated that the employer’s burden was to show that the policy or
practice is one that “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used” and “measures the person for the job and not the person in the abstract.”85 In both Albemarle86 and Dothard,87 the Court emphasized the factual nature of the business
necessity inquiry. The Court further stated in Dothard that the terms of the exclusionary policy must “be shown to be necessary to safe and efficient job performance.”88

In a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an employer to “follow[] the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense.”89 The Eighth Circuit identified three factors (the “Green factors”) that were relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity:

•

The nature and gravity of the offense or conduct;90

•

The time that has passed since the offense or conduct and/or

completion of the sentence; 91 and

•

The nature of the job held or sought.92

In 2007, the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority93
developed the statutory analysis in greater depth. Douglas El challenged SEPTA’s policy of excluding everyone ever convicted of a violent crime from the job of paratransit driver.94 El, a
55 year-old African American paratransit driver-trainee, was terminated from employment when
SEPTA learned of his conviction for second-degree murder 40 years earlier; the conviction
involved a gang fight when he was 15 years old and was his only disqualifying offense under SEPTA’s policy.95 The Third Circuit expressed “reservations” about a policy such as SEPTA’s
(exclusion for all violent crimes, no matter how long ago they were committed) “in the abstract.”96

Applying Supreme Court precedent, the El court observed that some level of risk is
inevitable in all hiring, and that, “[i]n a broad sense, hiring policies . . . ultimately concern the management of risk.”97 Recognizing that assessing such risk is at the heart of criminal record
exclusions, the Third Circuit concluded that Title VII requires employers to justify criminal
record exclusions by demonstrating that they “accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.”98

The Third Circuit affirmed summary judgment for SEPTA, but stated that the outcome of
the case might have been different if Mr. El had, “for example, hired an expert who testified that
there is a time at which a former criminal is no longer any more likely to recidivate than the average person, . . . [so] there would be a factual question for the jury to resolve.”99 The Third
Circuit reasoned, however, that the recidivism evidence presented by SEPTA’s experts, in

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conjunction with the nature of the position at issue—paratransit driver-trainee with unsupervised access to vulnerable adults—required the employer to exercise the utmost care.100
In the subsections below, the Commission discusses considerations that are relevant to assessing whether criminal record exclusion policies or practices are job related and consistent with business necessity. First, we emphasize that arrests and convictions are treated differently.
2. Arrests
The fact of an arrest does not establish that criminal conduct has occurred.101 Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed.102 Even if an individual is charged and subsequently prosecuted, he is presumed innocent unless proven guilty.103
An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a factbased analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.
Another reason for employers not to rely on arrest records is that they may not report the final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted). As documented in Section III.A., supra, the DOJ/BJS reported that many arrest records in the FBI’s III database and state criminal record repositories are not associated with final dispositions.104 Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.105
Example 3: Arrest Record Is Not Grounds for Exclusion. Mervin and Karen, a middle-aged African American couple, are driving to church in a predominantly white town. An officer stops them and interrogates them about their destination. When Mervin becomes annoyed and comments that his offense is simply “driving while Black,” the officer arrests him for disorderly conduct. The prosecutor decides not to file charges against Mervin, but the arrest remains in the police department’s database and is reported in a background check when Mervin applies with his employer of fifteen years for a promotion to an executive position. The employer’s practice is to deny such promotions to individuals with arrest records, even without a conviction, because it views an arrest record as an indicator of untrustworthiness and irresponsibility. If Mervin filed a Title VII charge based on these facts, and disparate impact based on race were established, the EEOC would find reasonable cause to believe that his employer violated Title VII.
Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.
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Example 4: Employer's Inquiry into Conduct Underlying Arrest. Andrew, a Latino man, worked as an assistant principal in Elementary School for several years. After several ten and eleven-year-old girls attending the school accused him of touching them inappropriately on the chest, Andrew was arrested and charged with several counts of endangering the welfare of children and sexual abuse. Elementary School has a policy that requires suspension or termination of any employee who the school believes engaged in conduct that impacts the health or safety of the students. After learning of the accusations, the school immediately places Andrew on unpaid administrative leave pending an investigation. In the course of its investigation, the school provides Andrew a chance to explain the events and circumstances that led to his arrest. Andrew denies the allegations, saying that he may have brushed up against the girls in the crowded hallways or lunchroom, but that he doesn’t really remember the incidents and does not have regular contact with any of the girls. The school also talks with the girls, and several of them recount touching in crowded situations. The school does not find Andrew’s explanation credible. Based on Andrew’s conduct, the school terminates his employment pursuant to its policy.
Andrew challenges the policy as discriminatory under Title VII. He asserts that it has a disparate impact based on national origin and that his employer may not suspend or terminate him based solely on an arrest without a conviction because he is innocent until proven guilty. After confirming that an arrest policy would have a disparate impact based on national origin, the EEOC concludes that no discrimination occurred. The school’s policy is linked to conduct that is relevant to the particular jobs at issue, and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest. The Commission finds no reasonable cause to believe Title VII was violated.
3. Convictions
By contrast, a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.106 However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction. For example, a database may continue to report a conviction that was later expunged, or may continue to report as a felony an offense that was subsequently downgraded to a misdemeanor.107
Some states require employers to wait until late in the selection process to ask about convictions.108 The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience.109 As a best practice, and consistent with applicable laws,110 the Commission recommends that employers not ask about
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convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.
4. Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity
To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.
Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:
o The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); 111 or
o The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity. See Section V.B.9, infra (examples of relevant considerations in individualized assessments).
Depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.
5. Validation
The Uniform Guidelines describe three different approaches to validating employment screens.112 However, they recognize that “[t]here are circumstances in which a user cannot or
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need not utilize” formal validation techniques and that in such circumstances an employer
“should utilize selection procedures which are as job related as possible and which will minimize or eliminate adverse impact as set forth [in the following subsections].”113 Although there may
be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications,114 and thereby provide a framework for validating some
employment exclusions, such studies are rare at the time of this drafting.

6. Detailed Discussion of the Green Factors and Criminal Conduct Screens

Absent a validation study that meets the Uniform Guidelines’ standards, the Green factors provide the starting point for analyzing how specific criminal conduct may be linked to particular positions. The three Green factors are:

•

The nature and gravity of the offense or conduct;

•

The time that has passed since the offense, conduct and/or completion of the

sentence; and

•

The nature of the job held or sought.

a. The Nature and Gravity of the Offense or Conduct

Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation.115 With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.

b. The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence

Employer policies typically specify the duration of a criminal conduct exclusion. While
the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did
acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard.116 Subsequently, in El, the court noted that
the plaintiff might have survived summary judgment if he had presented evidence that “there is a
time at which a former criminal is no longer any more likely to recidivate than the average person . . . .”117 Thus, the court recognized that the amount of time that had passed since the
plaintiff’s criminal conduct occurred was probative of the risk he posed in the position in
question.

Whether the duration of an exclusion will be sufficiently tailored to satisfy the business
necessity standard will depend on the particular facts and circumstances of each case. Relevant
and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.118

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c. The Nature of the Job Held or Sought
Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job’s duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”119
7. Examples of Criminal Conduct Exclusions that Do Not Consider the Green Factors
A policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is inconsistent with the Green factors because it does not focus on the dangers of particular crimes and the risks in particular positions. As the court recognized in Green, “[w]e cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.”120
Example 5: Exclusion Is Not Job Related and Consistent with Business Necessity. The National Equipment Rental Company uses the Internet to accept job applications for all positions. All applicants must answer certain questions before they are permitted to submit their online application, including “have you ever been convicted of a crime?” If the applicant answers “yes,” the online application process automatically terminates, and the applicant sees a screen that simply says “Thank you for your interest. We cannot continue to process your application at this time.”
The Company does not have a record of the reasons why it adopted this exclusion, and it does not have information to show that convictions for all offenses render all applicants unacceptable risks in all of its jobs, which range from warehouse work, to delivery, to management positions. If a Title VII charge were filed based on these facts, and there was a disparate impact on a Title VII-protected basis, the EEOC would find reasonable cause to believe that the blanket exclusion was not job related and consistent with business necessity because the risks associated with all convictions are not pertinent to all of the Company’s jobs.
Example 6: Exclusion Is Not Job Related and Consistent with Business Necessity. Leo, an African American man, has worked
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successfully at PR Agency as an account executive for three years. After a change of ownership, the new owners adopt a policy under which it will not employ anyone with a conviction. The policy does not allow for any individualized assessment before exclusion. The new owners, who are highly respected in the industry, pride themselves on employing only the “best of the best” for every position. The owners assert that a quality workforce is a key driver of profitability.
Twenty years earlier, as a teenager, Leo pled guilty to a misdemeanor assault charge. During the intervening twenty years, Leo graduated from college and worked successfully in advertising and public relations without further contact with the criminal justice system. At PR Agency, all of Leo’s supervisors assessed him as a talented, reliable, and trustworthy employee, and he has never posed a risk to people or property at work. However, once the new ownership of PR Agency learns about Leo’s conviction record through a background check, it terminates his employment. It refuses to reconsider its decision despite Leo’s positive employment history at PR Agency.
Leo files a Title VII charge alleging that PR Agency’s conviction policy has a disparate impact based on race and is not job related for the position in question and consistent with business necessity. After confirming disparate impact, the EEOC considers PR Agency’s defense that it employs only the “best of the best” for every position, and that this necessitates excluding everyone with a conviction. PR Agency does not show that all convictions are indicative of risk or danger in all its jobs for all time, under the Green factors. Nor does PR Agency provide any factual support for its assertion that having a conviction is necessarily indicative of poor work or a lack of professionalism. The EEOC concludes that there is reasonable cause to believe that the Agency’s policy is not job related for the position in question and consistent with business necessity. 121
8. Targeted Exclusions that Are Guided by the Green Factors
An employer policy or practice of excluding individuals from particular positions for specified criminal conduct within a defined time period, as guided by the Green factors, is a targeted exclusion. Targeted exclusions are tailored to the rationale for their adoption, in light of the particular criminal conduct and jobs involved, taking into consideration fact-based evidence, legal requirements, and/or relevant and available studies.
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As discussed above in Section V.B.4, depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.

9. Individualized Assessment

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:

•

The facts or circumstances surrounding the offense or conduct;

•

The number of offenses for which the individual was convicted;

•

Older age at the time of conviction, or release from prison; 122

•

Evidence that the individual performed the same type of work, post conviction,

with the same or a different employer, with no known incidents of criminal

conduct;

•

The length and consistency of employment history before and after the

offense or conduct; 123

•

Rehabilitation efforts, e.g., education/training; 124

•

Employment or character references and any other information regarding fitness

for the particular position;125 and

•

Whether the individual is bonded under a federal, state, or local bonding

program. 126

If the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without the information.

Example 7: Targeted Screen with Individualized Assessment Is Job Related and Consistent with Business Necessity. County Community Center rents meeting rooms to civic organizations and small businesses, party rooms to families and social groups, and athletic facilities to local recreational sports leagues. The County has a targeted rule prohibiting anyone with a conviction for theft crimes (e.g., burglary, robbery, larceny, identity theft) from working in a position with access to personal financial

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information for at least four years after the conviction or release from incarceration. This rule was adopted by the County’s Human Resources Department based on data from the County Corrections Department, national criminal data, and recent recidivism research for theft crimes. The Community Center also offers an opportunity for individuals identified for exclusion to provide information showing that the exclusion should not be applied to them.
Isaac, who is Hispanic, applies to the Community Center for a full-time position as an administrative assistant, which involves accepting credit card payments for room rentals, in addition to having unsupervised access to the personal belongings of people using the facilities. After conducting a background check, the County learns that Isaac pled guilty eighteen months earlier, at age twenty, to credit card fraud, and that he did not serve time in prison. Isaac confirms these facts, provides a reference from the restaurant where he now works on Saturday nights, and asks the County for a “second chance” to show that he is trustworthy. The County tells Isaac that it is still rejecting his employment application because his criminal conduct occurred eighteen months ago and is directly pertinent to the job in question. The information he provided did nothing to dispel the County’s concerns.
Isaac challenges this rejection under Title VII, alleging that the policy has a disparate impact on Hispanics and is not job related and consistent with business necessity. After confirming disparate impact, the EEOC finds that this screen was carefully tailored to assess unacceptable risk in relevant positions, for a limited time period, consistent with the evidence, and that the policy avoided overbroad exclusions by allowing individuals an opportunity to explain special circumstances regarding their criminal conduct. Thus, even though the policy has a disparate impact on Hispanics, the EEOC does not find reasonable cause to believe that discrimination occurred because the policy is job related and consistent with business necessity. 127
Example 8: Targeted Exclusion Without Individualized Assessment Is Not Job Related and Consistent with Business Necessity. “Shred 4 You” employs over 100 people to pick up discarded files and sensitive materials from offices, transport the materials to a secure facility, and shred and recycle them. The owner of “Shred 4 You” sells the company to a competitor, known as “We Shred.” Employees of “Shred 4 You” must reapply for employment with “We Shred” and undergo a background check. “We Shred” has a targeted criminal conduct exclusion policy that prohibits the employment of anyone who has been convicted of any crime related to theft or fraud in the past five years, and the policy does not provide for any individualized consideration. The company explains that its clients entrust it with handling sensitive and confidential information
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and materials; therefore, it cannot risk employing people who pose an above-average risk of stealing information.

Jamie, who is African American, worked successfully for “Shred 4 You” for five years before the company changed ownership. Jamie applies for his old job, and “We Shred” reviews Jamie’s performance appraisals, which include high marks for his reliability, trustworthiness, and honesty. However, when “We Shred” does a background check, it finds that Jamie pled guilty to misdemeanor insurance fraud five years ago, because he exaggerated the costs of several home repairs after a winter storm. “We Shred” management informs Jamie that his guilty plea is evidence of criminal conduct and that his employment will be terminated. Jamie asks management to consider his reliable and honest performance in the same job at “Shred 4 You,” but “We Shred” refuses to do so. The employer’s conclusion that Jamie’s guilty plea demonstrates that he poses an elevated risk of dishonesty is not factually based given Jamie’s history of trustworthiness in the same job. After confirming disparate impact based on race (African American), the EEOC finds reasonable cause to believe that Title VII was violated because the targeted exclusion was not job related and consistent with business necessity based on these facts.

C.

Less Discriminatory Alternatives

If an employer successfully demonstrates that its policy or practice is job related for the
position in question and consistent with business necessity, a Title VII plaintiff may still prevail
by demonstrating that there is a less discriminatory “alternative employment practice” that serves
the employer’s legitimate goals as effectively as the challenged practice but that the employer refused to adopt.128

VI. Positions Subject to Federal Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct

In some industries, employers are subject to federal statutory and/or regulatory requirements that prohibit individuals with certain criminal records from holding particular positions or engaging in certain occupations. Compliance with federal laws and/or regulations is
a defense to a charge of discrimination. However, the EEOC will continue to coordinate with other federal departments and agencies with the goal of maximizing federal regulatory consistency with respect to the use of criminal history information in employment decisions.129

A. Hiring in Certain Industries

Federal laws and regulations govern the employment of individuals with specific
convictions in certain industries or positions in both the private and public sectors. For example,
federal law excludes an individual who was convicted in the previous ten years of specified
crimes from working as a security screener or otherwise having unescorted access to the secure areas of an airport.130 There are equivalent requirements for federal law enforcement officers,131

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child care workers in federal agencies or facilities,132 bank employees, 133 and port workers,134 among other positions.135 Title VII does not preempt these federally imposed restrictions.
However, if an employer decides to impose an exclusion that goes beyond the scope of a
federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII
analysis.

Example 9: Exclusion Is Not Job Related and Consistent with Business Necessity. Your Bank has a rule prohibiting anyone with convictions for any type of financial or fraud-related crimes within the last twenty years from working in positions with access to customer financial information, even though the federal ban is ten years for individuals who are convicted of any criminal offense involving dishonesty, breach of trust, or money laundering from serving in such positions.

Sam, who is Latino, applies to Your Bank to work as a customer service representative. A background check reveals that Sam was convicted of a misdemeanor for misrepresenting his income on a loan application fifteen years earlier. Your Bank therefore rejects Sam, and he files a Title VII charge with the EEOC, alleging that the Bank’s policy has a disparate impact based on national origin and is not job related and consistent with business necessity. Your Bank asserts that its policy does not cause a disparate impact and that, even if it does, it is job related for the position in question because customer service representatives have regular access to financial information and depositors must have “100% confidence” that their funds are safe. However, Your Bank does not offer evidence showing that there is an elevated likelihood of committing financial crimes for someone who has been crime-free for more than ten years. After establishing that the Bank’s policy has a disparate impact based on national origin, the EEOC finds that the policy is not job related for the position in question and consistent with business necessity. The Bank’s justification for adding ten years to the federally mandated exclusion is insufficient because it is only a generalized concern about security, without proof.

B.

Obtaining Occupational Licenses

Title VII also does not preempt federal statutes and regulations that govern eligibility for
occupational licenses and registrations. These restrictions cover diverse sectors of the economy including the transportation industry,136 the financial industry,137 and import/export activities,138 among others.139

C. Waiving or Appealing Federally Imposed Occupational Restrictions

Several federal statutes and regulations provide a mechanism for employers or individuals to appeal or apply for waivers of federally imposed occupational restrictions. For example, unless a bank receives prior written consent from the Federal Deposit Insurance

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Corporation (FDIC), an individual convicted of a criminal offense involving dishonesty, breach of trust, money laundering, or another financially related crime may not work in, own, or control “an insured depository institution” (e.g., bank) for ten years under the Federal Deposit Insurance Act.140 To obtain such FDIC consent, the insured institution must file an application for a waiver on behalf of the particular individual.141 Alternatively, if the insured institution does not apply for the waiver on the individual’s behalf, the individual may file a request directly with the FDIC for a waiver of the institution filing requirement, demonstrating “substantial good cause” to grant the waiver.142 If the FDIC grants the individual’s waiver request, the individual can then file an application directly with the FDIC for consent to work for the insured institution in question.143 Once the institution, or the individual, submits the application, the FDIC’s criminal record waiver review process requires consideration of mitigating factors that are consistent with Title VII, including evidence of rehabilitation, and the nature and circumstances of the crime.144
Additionally, port workers who are denied the Transportation Workers Identification Credential (TWIC) based on their conviction record may seek a waiver for certain permanently disqualifying offenses or interim disqualifying offenses, and also may file an individualized appeal from the Transportation Security Administration’s initial determination of threat assessment based on the conviction.145 The Maritime Transportation Security Act, which requires all port workers to undergo a criminal background check to obtain a TWIC,146 provides that individuals with convictions for offenses such as espionage, treason, murder, and a federal crime of terrorism are permanently disqualified from obtaining credentials, but those with convictions for firearms violations and distribution of controlled substances may be temporarily disqualified.147 Most offenses related to dishonesty are only temporarily disqualifying.148
Example 10: Consideration of Federally Imposed Occupational Restrictions. John Doe applies for a position as a truck driver for Truckers USA. John’s duties will involve transporting cargo to, from, and around ports, and Truckers USA requires all of its port truck drivers to have a TWIC. The Transportation Security Administration (TSA) conducts a criminal background check and may deny the credential to applicants who have permanently disqualifying criminal offenses in their background as defined by federal law. After conducting the background check for John Doe, TSA discovers that he was convicted nine years earlier for conspiracy to use weapons of mass destruction. TSA denies John a security card because this is a permanently disqualifying criminal offense under federal law.149 John, who points out that he was a minor at the time of the conviction, requests a waiver by TSA because he had limited involvement and no direct knowledge of the underlying crime at the time of the offense. John explains that he helped a friend transport some chemical materials that the friend later tried to use to damage government property. TSA refuses to grant John’s waiver request because a conviction for conspiracy to use weapons of mass destruction is not subject to the TSA’s waiver procedures.150 Based on this denial, Truckers USA rejects John’s application for the port truck driver position. Title VII does not override Truckers USA’s policy because the policy is consistent with another federal law.
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While Title VII does not mandate that an employer seek such waivers, where an employer does seek waivers it must do so in a nondiscriminatory manner.
D. Security Clearances
The existence of a criminal record may result in the denial of a federal security clearance, which is a prerequisite for a variety of positions with the federal government and federal government contractors.151 A federal security clearance is used to ensure employees’ trustworthiness, reliability, and loyalty before providing them with access to sensitive national security information.152 Under Title VII’s national security exception, it is not unlawful for an employer to “fail or refuse to hire and employ” an individual because “such individual has not fulfilled or has ceased to fulfill” the federal security requirements.153 This exception focuses on whether the position in question is, in fact, subject to national security requirements that are imposed by federal statute or Executive Order, and whether the adverse employment action actually resulted from the denial or revocation of a security clearance.154 Procedural requirements related to security clearances must be followed without regard to an individual’s race, color, religion, sex, or national origin.155
E. Working for the Federal Government
Title VII provides that, with limited coverage exceptions, “[a]ll personnel actions affecting employees or applicants for employment . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.”156 The principles discussed above in this Guidance apply in the federal employment context. In most circumstances, individuals with criminal records are not automatically barred from working for the federal government.157 However, the federal government imposes criminal record restrictions on its workforce through “suitability” requirements for certain positions.158 The federal government’s Office of Personnel Management (OPM) defines suitability as “determinations based on a person's character or conduct that may have an impact on the integrity or efficiency of the service.”159 Under OPM's rules, agencies may bar individuals from federal employment for up to three years if they are found unsuitable based on criminal or dishonest conduct, among other factors.160 OPM gives federal agencies the discretion to consider relevant mitigating criteria when deciding whether an individual is suitable for a federal position.161 These mitigating criteria, which are consistent with the three Green factors and also provide an individualized assessment of the applicant’s background, allow consideration of: (1) the nature of the position for which the person is applying or in which the person is employed; (2) the nature and seriousness of the conduct; (3) the circumstances surrounding the conduct; (4) the recency of the conduct; (5) the age of the person involved at the time of the conduct; (6) contributing societal conditions; and (7) the absence or presence of rehabilitation or efforts toward rehabilitation.162 In general, OPM requires federal agencies and departments to consider hiring an individual with a criminal record if he is the best candidate for the position in question and can comply with relevant job requirements.163 The EEOC continues to coordinate with OPM to achieve employer best practices in the federal sector.164
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VII. Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct
States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct.165 Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.166 Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.167
Example 11: State Law Exclusion Is Job Related and Consistent with Business Necessity. Elijah, who is African American, applies for a position as an office assistant at Pre-School, which is in a state that imposes criminal record restrictions on school employees. Pre-School, which employs twenty-five full- and part-time employees, uses all of its workers to help with the children. Pre-School performs a background check and learns that Elijah pled guilty to charges of indecent exposure two years ago. After being rejected for the position because of his conviction, Elijah files a Title VII disparate impact charge based on race to challenge Pre-School’s policy. The EEOC conducts an investigation and finds that the policy has a disparate impact and that the exclusion is job related for the position in question and consistent with business necessity because it addresses serious safety risks of employment in a position involving regular contact with children. As a result, the EEOC would not find reasonable cause to believe that discrimination occurred.
Example 12: State Law Exclusion Is Not Consistent with Title VII. County Y enforces a law that prohibits all individuals with a criminal conviction from working for it. Chris, an African American man, was convicted of felony welfare fraud fifteen years ago, and has not had subsequent contact with the criminal justice system. Chris applies to County Y for a job as an animal control officer trainee, a position that involves learning how to respond to citizen complaints and handle animals. The County rejects Chris’s application as soon as it learns that he has a felony conviction. Chris files a Title VII charge, and the EEOC investigates, finding disparate impact based on race and also that the exclusionary policy is not job related and consistent with business necessity. The County cannot justify rejecting everyone with any conviction from all jobs. Based on these facts, County Y’s law “purports to require or permit the doing of an[] act which would be an unlawful employment practice” under Title VII.
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VIII. Employer Best Practices The following are examples of best practices for employers who are considering criminal
record information when making employment decisions. General • Eliminate policies or practices that exclude people from employment based on any criminal
record. • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on
employment discrimination. Developing a Policy • Develop a narrowly tailored written policy and procedure for screening applicants and
employees for criminal conduct. • Identify essential job requirements and the actual circumstances under which the jobs are
performed. • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
o Identify the criminal offenses based on all available evidence. • Determine the duration of exclusions for criminal conduct based on all available
evidence. o Include an individualized assessment.
• Record the justification for the policy and procedures. • Note and keep a record of consultations and research considered in crafting the policy
and procedures. • Train managers, hiring officials, and decisionmakers on how to implement the policy and
procedures consistent with Title VII. Questions about Criminal Records • When asking questions about criminal records, limit inquiries to records for which exclusion
would be job related for the position in question and consistent with business necessity.
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Confidentiality • Keep information about applicants’ and employees’ criminal records confidential. Only use
it for the purpose for which it was intended.

Approved by the Commission:
_____________________________ Chair Jacqueline A. Berrien

_____________ Date

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1

42 U.S.C. § 2000e et seq. The EEOC also enforces other anti-discrimination laws

including: Title I of the Americans with Disabilities Act of 1990, as amended (ADA), and

Section 501 of the Rehabilitation Act, as amended, which prohibit employment discrimination on

the basis of disability; the Age Discrimination in Employment Act of 1967, as amended

(ADEA), which prohibits discrimination on the basis of age 40 or above; Title II of the Genetic

Information Nondiscrimination Act of 2008 (GINA), which prohibits discrimination on the basis

of genetic information; and the Equal Pay Act of 1963, as amended (EPA), which requires

employers to pay male and female employees at the same establishment equal wages for equal

work.

2

All entities covered by Title VII are subject to this analysis. See 42 U.S.C. § 2000e-2

(anti-discrimination provisions); 42 U.S.C. § 2000e(b)–(e) (defining “employer,” “employment

agency,” and “labor organization”); 42 U.S.C. § 2000e-16(a) (prohibiting discriminatory

employment practices by federal departments and agencies). For purposes of this Guidance, the

term “employer” is used in lieu of listing all Title VII-covered entities. The Commission

considers other coverage questions that arise in particular charges involving, for example, joint

employment or third party interference in Compliance Manual Section 2: Threshold Issues, U.S.

EQUAL EMP’T OPPORTUNITY COMM’N, § 2-III B., Covered Entities,

http://www.eeoc.gov/policy/docs/threshold.html#2-III-B (last visited April 23, 2012).

3

For the purposes of this Guidance, references to “contact” with the criminal justice

system may include, for example, an arrest, charge, indictment, citation, conviction,

incarceration, probation, or parole.

4

See THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,

PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001, at 3 (2003),

http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf [hereinafter PREVALENCE OF

IMPRISONMENT] (“Between 1974 and 2001 the number of former prisoners living in the United

States more than doubled, from 1,603,000 to 4,299,000.”); SEAN ROSENMERKEL ET AL., BUREAU

OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, 2006 –

STATISTICAL TABLES 1 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf (reporting

that between 1990 and 2006, there has been a 37% increase in the number of felony offenders

sentenced in state courts); see also PEW CTR. ON THE STATES, ONE IN 31: THE LONG REACH OF

AMERICAN CORRECTIONS 4 (2009),

http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_3-26-

09.pdf [hereinafter ONE IN 31] (“During the past quarter-century, the number of prison and jail

inmates has grown by 274 percent . . . .[bringing] the total population in custody to 2.3 million.

During the same period, the number under community supervision grew by a staggering

3,535,660 to a total of 5.1 million.”); PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN

AMERICA 2008, at 3 (2008),

http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS Prison08 FINAL 2-1-

1 FORWEB.pdf (“[M]ore than one in every 100 adults is now confined in an American jail or

27

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prison.”); Robert Brame, Michael G. Turner, Raymond Paternoster, & Shawn D. Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 PEDIATRICS 21, 25, 26 (2012) (finding that approximately 1 out of 3 of all American youth will experience at least 1 arrest for a nontraffic offense by the age of 23).

5

See JOHN SCHMITT & KRIS WARNER, CTR. FOR ECON. & POLICY RESEARCH, EX-

OFFENDERS AND THE LABOR MARKET 12 (2010), www.cepr.net/documents/publications/ex-

offenders-2010-11.pdf (“In 2008, ex-prisoners were 2.9 to 3.2 percent of the total working-age

population (excluding those currently in prison or jail) or about one in 33 working-age adults.

Ex-felons were a larger share of the total working-age population: 6.6 to 7.4 percent, or about

one in 15 working-age adults [not all felons serve prison terms].”); see id. at 3 (concluding that

“in the absence of some reform of the criminal justice system, the share of ex-offenders in the

working-age population will rise substantially in coming decades”).

6

PREVALENCE OF IMPRISONMENT, supra note 4, at 4, Table 3.

7

Id.

8

ONE IN 31, supra note 4, at 5 (noting that when all of the individuals who are

probationers, parolees, prisoners or jail inmates are added up, the total is more than 7.3 million

adults; this is more than the populations of Chicago, Philadelphia, San Diego, and Dallas

combined, and larger than the populations of 38 states and the District of Columbia).

9

PREVALENCE OF IMPRISONMENT, supra note 4, at 7.

10

Id. at 5, Table 5; cf. PEW CTR. ON THE STATES, COLLATERAL COSTS: INCARCERATION’S

EFFECT ON ECONOMIC MOBILITY 6 (2010),

http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653 (“Simply

stated, incarceration in America is concentrated among African American men. While 1 in every

87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is

1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old

men without a high school diploma or GED: 1 in 8 White males in this demographic group is

incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. PEW CTR. ON THE

STATES, supra, at 8, Figure 2.

11 This document uses the terms “Black” and “African American,” and the terms “Hispanic” and “Latino,” interchangeably.

12 See infra notes 65–67 (citing data for the arrest rates and population statistics for African Americans and Hispanics).

13

PREVALENCE OF IMPRISONMENT, supra note 4, at 1.

14

Id. at 8.

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15 See Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (Feb. 4, 1987), http://www.eeoc.gov/policy/docs/convict1.html; EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (July 29, 1987), http://www.eeoc.gov/policy/docs/convict2.html; Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (Sept. 7, 1990), http://www.eeoc.gov/policy/docs/arrest_records.html; Compliance Manual Section 15: Race & Color Discrimination, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, § 15VI.B.2 (April 19, 2006), http://www.eeoc.gov/policy/docs/race-color.pdf. See also EEOC Decision No. 72-1497 (1972) (challenging a criminal record exclusion policy based on “serious crimes”); EEOC Decision No. 74-89 (1974) (challenging a policy where a felony conviction was considered an adverse factor that would lead to disqualification); EEOC Decision No. 78-03 (1977) (challenging an exclusion policy based on felony or misdemeanor convictions involving moral turpitude or the use of drugs); EEOC Decision No. 78-35 (1978) (concluding that an employee’s discharge was reasonable given his pattern of criminal behavior and the severity and recentness of his criminal conduct).
16 In 2011, U.S. Attorney General Eric Holder assembled a Cabinet-level interagency Reentry Council to support the federal government’s efforts to promote the successful reintegration of ex-offenders back into their communities. National Reentry Resource Center – Federal Interagency Reentry Council, http://www.nationalreentryresourcecenter.org/reentrycouncil (last visited April 23, 2012). As a part of the Council’s efforts, it has focused on removing barriers to employment for ex-offenders to reduce recidivism by publishing several fact sheets on employing individuals with criminal records. See, e.g., FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON FEDERAL HIRING POLICIES (2011), http://www.nationalreentryresourcecenter.org/documents/0000/1083/Reentry_Council_Mythbust er_Fed_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON HIRING/CRIMINAL RECORDS GUIDANCE (2011), http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry Council Mythbust er Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! CRIMINAL HISTORIES AND EMPLOYMENT BACKGROUND CHECKS (2011), http://www.nationalreentryresourcecenter.org/documents/0000/1176/Reentry_Council_Mythbust er_FCRA_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON FEDERAL BONDING PROGRAM (2011), http://www.nationalreentryresourcecenter.org/documents/0000/1061/Reentry Council Mythbust er_Federal_Bonding.pdf.
In addition to these federal efforts, several state law enforcement agencies have embraced initiatives and programs that encourage the employment of ex-offenders. For example, Texas’ Department of Criminal Justice has a Reentry and Integration Division and within that Division, a Reentry Task Force Workgroup. See Reentry and Integration Division-Reentry Task Force, TEX. DEP’T OF CRIMINAL JUSTICE, http://www.tdcj.state.tx.us/divisions/rid/rid texas reentry task force.html (last visited April 23, 2012). One of the Workgroups in this Task Force specifically focuses on identifying
29

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employment opportunities for ex-offenders and barriers that affect ex-offenders’ access to employment or vocational training programs. Reentry and Integration Division – Reentry Task Force Workgroups, TEX. DEP’T OF CRIMINAL JUSTICE, http://www.tdcj.state.tx.us/divisions/rid/r_workgroup/rid_workgroup_employment.html (last visited April 23, 2012). Similarly, Ohio’s Department of Rehabilitation and Correction has an Offender Workforce Development Office that “works with departmental staff and correctional institutions within the Ohio Department of Rehabilitation and Correction to prepare offenders for employment and the job search process.” Jobs for Ohio Offenders, OHIO DEP’T OF REHAB. AND CORR. OFFENDER WORKFORCE DEV., http://www.drc.ohio.gov/web/JOBOFFEN.HTM (last updated Aug. 9, 2010). Law enforcement agencies in other states such as Indiana and Florida have also recognized the importance of encouraging ex-offender employment. See, e.g., IDOC: Road to Re-Entry, IND. DEP’T OF CORR., http://www.in.gov/idoc/reentry/index.htm (last visited April 23, 2012) (describing various services and programs that are available to ex-offenders to help them to obtain employment); FLA. DEP’T OF CORRS., RECIDIVISM REDUCTION STRATEGIC PLAN: FISCAL YEAR 2009-2014, at 11, 12 (2009), http://www.dc.state.fl.us/orginfo/FinalRecidivismReductionPlan.pdf (identifying the lack of employment as one of the barriers to successful ex-offender reentry).

17

CARL R. ERNST & LES ROSEN, “NATIONAL” CRIMINAL HISTORY DATABASES 1 (2002),

http://www.brbpub.com/articles/CriminalHistoryDB.pdf.

18

LEXISNEXIS, CRIMINAL BACKGROUND CHECKS: WHAT NON-PROFITS NEED TO KNOW

ABOUT CRIMINAL RECORDS 4 (2009),

http://www.lexisnexis.com/risk/nonprofit/documents/Volunteer Screening White Paper.pdf.

19

Id.

20

ERNST & ROSEN, supra note 17, at 1; NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS,

CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT PURPOSES 5,

http://www.napbs.com/files/public/Learn More/White Papers/CriminalBackgroundChecks.pdf.

21

LEXISNEXIS, supra note 18, at 6. See also NAT’L ASS’N OF PROF’L BACKGROUND

SCREENERS, supra note 20 at 5.

22

ERNST & ROSEN, supra note 17, at 1.

23

Id.

24

See SEARCH, THE NATIONAL TASK FORCE ON THE CRIMINAL BACKGROUNDING OF

AMERICA 3, 4 (2005), http://www.search.org/files/pdf/ReportofNTFCBA.pdf. Registries and

watch lists can also include federal and international terrorist watch lists, and registries of

individuals who are being investigated for certain types of crimes, such as gang-related crimes.

Id. See also LEXISNEXIS, supra note 18, at 5 (reporting that “all 50 states currently have a

publicly available sex offender registry”).

25

See U.S. DEP’T OF JUSTICE, THE ATTORNEY GENERAL’S REPORT ON CRIMINAL HISTORY

30

Case 5:13-cv-00255-C Document 62 Filed 07/28/17 Page 53 of 81 PageID 1253

BACKGROUND CHECKS 4 (2006), http://www.justice.gov/olp/ag bgchecks report.pdf [hereinafter BACKGROUND CHECKS]. See also ERNST & ROSEN, supra note 17, at 2.

26

See NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS, supra note 20, at 5. See also

LEXISNEXIS, supra note 18, at 5.

27

LEXISNEXIS, supra note 18, at 5. See also AM. ASS’N OF COLLS. OF PHARMACY, REPORT

OF THE AACP CRIMINAL BACKGROUND CHECK ADVISORY PANEL 6–7 (2006),

http://www.aacp.org/resources/academicpolicies/admissionsguidelines/Documents/AACPBackgr

oundChkRpt.pdf.

28

AM. ASS’N OF COLLS. OF PHARMACY, supra note 27, at 6–7.

29

BACKGROUND CHECKS, supra note 25, at 4.

30

Id.

31

NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS, supra note 20, at 5.

32

BACKGROUND CHECKS, supra note 25, at 4.

33

Id. at 3.

34 See id. (“Non-criminal justice screening using FBI criminal history records is typically done by a government agency applying suitability criteria that have been established by law or the responsible agency.”).

35

Id. at 5.

36

Id. at 4.

37

DENNIS A. DEBACCO & OWEN M. GREENSPAN, BUREAU OF JUSTICE STATISTICS, U.S.

DEP’T OF JUSTICE, SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS, 2010, at 2

(2011), https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafter STATE CRIMINAL

HISTORY].

38

See BACKGROUND CHECKS, supra note 25, at 17.

39

SEARCH, REPORT OF THE NATIONAL TASK FORCE ON THE COMMERCIAL SALE OF

CRIMINAL JUSTICE RECORD INFORMATION 83 (2005),

www.search.org/files/pdf/RNTFCSCJRI.pdf; see also Douglas Belkin, More Job Seekers

Scramble to Erase Their Criminal Past, WALL ST. J., Nov. 11, 2009, at A1, available at

http://online.wsj.com/article/SB125789494126242343.html?KEYWORDS=Douglas+Belkin

(“Arrests that have been legally expunged may remain on databases that data-harvesting

companies offer to prospective employers; such background companies are under no legal

obligation to erase them.”).

31

Case 5:13-cv-00255-C Document 62 Filed 07/28/17 Page 54 of 81 PageID 1254

If applicants deny the existence of expunged or sealed records, as they are permitted to do in several states, they may appear dishonest if such records are reported in a criminal background check. See generally Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1509–10 (2003) (noting that 29 of the 40 states that allow expungement/sealing of arrest records permit the subject of the record to deny its existence if asked about it on employment applications or similar forms, and 13 of the 16 states that allow the expungement/sealing of adult conviction records permit the subject of the record to deny its existence under similar circumstances).

40

See SEARCH, INTERSTATE IDENTIFICATION NAME CHECK EFFICACY: REPORT OF THE

NATIONAL TASK FORCE TO THE U.S. ATTORNEY GENERAL 21–22 (1999),

www.search.org/files/pdf/III_Name_Check.pdf (“A so-called 'name check' is based not only on

an individual's name, but also on other personal identifiers such as sex, race, date of birth and

Social Security Number. . . . [N]ame checks are known to produce inaccurate results as a

consequence of identical or similar names and other identifiers."); id. at 7 (finding that in a

sample of 82,601 employment applicants, 4,562 of these individuals were inaccurately indicated

by a “name check” to have criminal records, which represents approximately 5.5% of the overall

sample).

41

BACKGROUND CHECKS, supra note 25, at 2.

42 A “consumer reporting agency” is defined by FCRA as “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purposes of furnishing consumer reports to third parties . . . .” 15 U.S.C. § 1681a(f) (emphasis added); see also BACKGROUND CHECKS, supra note 25, at 43 (stating that the records that CRAs collect include “criminal history information, such as arrest and conviction information”).

43 A “consumer report” is defined by FCRA as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for . . . employment purposes . . . .” 15 U.S.C. § 1681a(d)(1) (emphasis added).

44 See 15 U.S.C. § 1681c(a)(2) (“[N]o consumer reporting agency may make any consumer report containing . . . records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.”). But see id. §1681c(b)(3) (stating that the reporting restrictions for arrest records do not apply to individuals who will earn “an annual salary which equals, or which may reasonably be expected to equal $75,000 or more”).
45 15 U.S.C. § 1681c(a)(5) (“[N]o consumer reporting agency may make any consumer report containing . . . [a]ny other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.”).

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46

BACKGROUND CHECKS, supra note 25, at 2.

47

See Adam Klein, Written Testimony of Adam Klein, U.S. EQUAL EMP’T OPPORTUNITY

COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/klein.cfm (last visited April 23, 2012)

(describing how “several data-collection agencies also market and sell a retail-theft contributory

database that is used by prospective employers to screen applicants”). See also Retail Theft

Database, ESTEEM, Workplace Theft Contributory Database, LEXISNEXIS,

http://www.lexisnexis.com/risk/solutions/retail-theft-contributory-database.aspx (last visited

April 23, 2012) (stating that their database has “[t]heft and shoplifting cases supplied by more

than 75,000 business locations across the country”). These databases may contain inaccurate

and/or misleading information about applicants and/or employees. See generally Goode v.

LexisNexis Risk & Info. Analytics Grp., Inc., No. 2:11-CV-2950-JD, 2012 WL 975043 (E.D. Pa.

Mar. 22, 2012) (unpublished).

48

BACKGROUND CHECKS, supra note 25, at 2.

49

SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL

BACKGROUND CHECKS, slide 3 (Jan. 22, 2010), http://www.slideshare.net/shrm/background-

check-criminal?from=share_email [hereinafter CONDUCTING CRIMINAL BACKGROUND CHECKS]

(73% of the responding employers reported that they conducted criminal background checks on

all of their job candidates, 19% reported that they conducted criminal background checks on

selected job candidates, and a mere 7% reported that they did not conduct criminal background

checks on any of their candidates). The survey excluded the “not sure” responses from its

analysis, which may account for the 1% gap in the total number of employer responses. Id.

50

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (39% of the

surveyed employers reported that they conducted criminal background checks “[t]o

reduce/prevent theft and embezzlement, other criminal activity”); see also Sarah E. Needleman,

Businesses Say Theft by Their Workers is Up, WALL ST. J., Dec. 11, 2008, at B8, available at

http://online.wsj.com/article/SB122896381748896999.html.

51

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (61% of the

surveyed employers reported that they conducted criminal background checks “[to] ensure a safe

work environment for employees”); see also ERIKA HARRELL, BUREAU OF JUSTICE STATISTICS,

U.S. DEP’T OF JUSTICE, WORKPLACE VIOLENCE, 1993–2009, at 1 (2011),

http://bjs.ojp.usdoj.gov/content/pub/pdf/wv09.pdf (reporting that in 2009, “[n]onfatal violence in

the workplace was about 15% of all nonfatal violent crime against persons age 16 or older”). But

see id. (noting that from “2002 to 2009, the rate of nonfatal workplace violence has declined by

35%, following a 62% decline in the rate from 1993 to 2002”). Studies indicate that most

workplace violence is committed by individuals with no relationship to the business or its

employees. See id. at 6 (reporting that between 2005 and 2009, strangers committed the majority

of workplace violence against individuals (53% for males and 41% for females) while violence

committed by co-workers accounted for a much smaller percentage (16.3% for males and 14.3%

for females)); see also NAT’L INST. FOR OCCUPATIONAL SAFETY & HEALTH, CTR. FOR DISEASE

CONTROL & PREVENTION, WORKPLACE VIOLENCE PREVENTION STRATEGIES AND RESEARCH

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NEEDS 4, Table 1 (2006), http://www.cdc.gov/niosh/docs/2006-144/pdfs/2006-144.pdf (reporting that approximately 85% of the workplace homicides examined were perpetrated in furtherance of a crime by persons with no relationship to the business or its employees; approximately 7% were perpetrated by employees or former employees, 5% were committed by persons with a personal relationship to an employee, and 3% were perpetrated by persons with a customer-client relationship to the business).

52

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (55% percent of

the surveyed employers reported that they conducted criminal background checks “[t]o reduce

legal liability for negligent hiring”). Employers have a common law duty to exercise reasonable

care in hiring to avoid foreseeable risks of harm to employees, customers, and the public. If an

employee engages in harmful misconduct on the job, and the employer has not exercised such

care in selecting the employee, the employer may be subject to liability for negligent hiring. See,

e.g., Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1318 (M.D. Fla. 2002) (“[N]egligent hiring

occurs when . . . the employer knew or should have known of the employee’s unfitness, and the

issue of liability primarily focuses upon the adequacy of the employer’s pre-employment

investigation into the employee’s background.”).

53

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 4 (40% of the

surveyed employers reported that they conducted criminal background checks for “[j]ob

candidates for positions for which state law requires a background check (e.g., day care teachers,

licensed medical practitioners, etc.)”); see id. at slide 7 (20% of the employers reported that they

conducted criminal background checks “[t]o comply with the applicable State law requiring a

background check (e.g., day care teachers, licensed medical practitioners, etc.) for a particular

position”). The study did not report the exact percentage of employers that conducted criminal

background checks to comply with applicable federal laws or regulations, but it did report that

25% of the employers conducted background checks for “[j]ob candidates for positions involving

national defense or homeland security.” Id. at slide 4.

54 See 42 U.S.C. § 2000e-2(a).

55 Disparate treatment based on the race or national origin of job applicants with the same qualifications and criminal records has been documented. For example, a 2003 study demonstrated that White applicants with the same qualifications and criminal records as Black applicants were three times more likely to be invited for interviews than the Black applicants. See Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 958, Figure 6 (2003), www.princeton.edu/~pager/pager_ajs.pdf. Pager matched pairs of young Black and White men as “testers” for her study. The “testers” in Pager’s study were college students who applied for 350 low-skilled jobs advertised in Milwaukee-area classified advertisements, to test the degree to which a criminal record affects subsequent employment opportunities. The same study showed that White job applicants with a criminal record were called back for interviews more often than equally-qualified Black applicants who did not have a criminal record. Id. at 958. See also Devah Pager et al., Sequencing Disadvantage: The Effects of Race and Criminal Background for Low Wage Job Seekers, 623 ANNALS AM. ACAD. POL. & SOC. SCI., 199 (2009), www.princeton.edu/~pager/annals sequencingdisadvantage.pdf (finding that among Black and

34

Case 5:13-cv-00255-C Document 62 Filed 07/28/17 Page 57 of 81 PageID 1257
White testers with similar backgrounds and criminal records, “the negative effect of a criminal conviction is substantially larger for blacks than whites. . . . the magnitude of the criminal record penalty suffered by black applicants (60 percent) is roughly double the size of the penalty for whites with a record (30 percent)”); see id. at 200–201 (finding that personal contact plays an important role in mediating the effects of a criminal stigma in the hiring process, and that Black applicants are less often invited to interview, thereby having fewer opportunities to counteract the stigma by establishing rapport with the hiring official); Devah Pager, Statement of Devah Pager, Professor of Sociology at Princeton University, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/11-20-08/pager.cfm (last visited April 23, 2012) (discussing the results of the Sequencing Disadvantage study); DEVAH PAGER & BRUCE WESTERN, NYC COMMISSION ON HUMAN RIGHTS, RACE AT WORK, REALITIES OF RACE AND CRIMINAL RECORD IN THE NYC JOB MARKET 6, Figure 2 (2006), http://www.nyc.gov/html/cchr/pdf/race_report_web.pdf (finding that White testers with a felony conviction were called back 13% of the time, Hispanic testers without a criminal record were called back 14% of the time, and Black testers without a criminal record were called back 10% of the time).
56 Race & Color Discrimination, supra note 15, § V.A.1.
57 A 2006 study demonstrated that employers who are averse to hiring people with criminal records sometimes presumed, in the absence of evidence to the contrary, that African American men applying for jobs have disqualifying criminal records. Harry J. Holzer et al., Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. & ECON. 451 (2006), http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; see also HARRY HOLZER ET AL., URBAN INST., EMPLOYER DEMAND FOR EX-OFFENDERS: RECENT EVIDENCE FROM LOS ANGELES 6–7 (2003), http://www.urban.org/UploadedPDF/410779_ExOffenders.pdf (describing the results of an employer survey where over 40% of the employers indicated that they would “probably not” or “definitely not” be willing to hire an applicant with a criminal record).
58 The Commission has not done matched-pair testing to investigate alleged discriminatory employment practices. However, it has issued an Enforcement Guidance that discusses situations where individuals or organizations file charges on the basis of matched-pair testing, among other practices. See generally Enforcement Guidance: Whether “Testers” Can File Charges and Litigate Claims of Employment Discrimination, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (May 22, 1996), http://www.eeoc.gov/policy/docs/testers.html.
59 42 U.S.C. § 2000e-2(k)(1)(A)(i). If an employer successfully demonstrates that its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but that the employer refused to adopt. Id. § 2000e-2(k)(1)(A)(ii).
60 401 U.S. 424, 431–32 (1971).
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61

Id. at 431.

62 The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105; see also Lewis v. City of Chicago, 130 S. Ct. 2191 (2010) (reaffirming disparate impact analysis); Ricci v. DeStefano, 557 U.S. 557 (2009) (same).

63 42 U.S.C. § 2000e-2(k)(1)(A)(i).

64 The Commission presumes that employers use the information sought and obtained from its applicants and others in making an employment decision. See Gregory v. Litton Sys. Inc.,316 F. Supp. 401, 403 (C.D. Cal.1970). If an employer asserts that it did not factor the applicant’s or employee’s known criminal record into an employment decision, the EEOC will seek evidence supporting this assertion. For example, evidence that the employer has other employees from the same protected group with roughly comparable criminal records may support the conclusion that the employer did not use the applicant’s or employee’s criminal record to exclude him from employment.

65

UNIF. CRIME REPORTING PROGRAM, FED. BUREAU OF INVESTIGATION, CRIME IN THE U.S.

2010, at Table 43a (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-

the-u.s.-2010/tables/table-43/10tbl43a.xls.

66

U.S. CENSUS BUREAU, THE BLACK POPULATION: 2010, at 3 (2011) ,

http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf (reporting that in 2010, “14 percent

of all people in the United States identified as Black, either alone, or in combination with one or

more races”).

67 Accurate data on the number of Hispanics arrested and convicted in the United States is limited. See NANCY E. WALKER ET AL., NAT’L COUNCIL OF LA RAZA, LOST OPPORTUNITIES: THE REALITY OF LATINOS IN THE U.S. CRIMINAL JUSTICE SYSTEM 17–18 (2004), http://www.policyarchive.org/handle/10207/bitstreams/20279.pdf (explaining why “[i]t is very difficult to find any information – let alone accurate information – on the number of Latinos arrested in the United States”). The Department of Justice’s Bureau of Justice Statistics’ (BJS) Sourcebook of Criminal Justice Statistics and the FBI’s Crime Information Services Division do not provide data for arrests by ethnicity. Id. at 17. However, the U.S. Drug Enforcement Administration (DEA) disaggregates data by Hispanic and non-Hispanic ethnicity. Id. at 18. According to DOJ/BJS, from October 1, 2008 to September 30, 2009, 45.5% of drug arrests made by the DEA were of Hispanics or Latinos. MARK MOTIVANS, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL JUSTICE STATISTICS, 2009 – STATISTICAL TABLES, at 6, Table 1.4 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf. Accordingly, Hispanics were arrested for drug offenses by the DEA at a rate of three times their numbers in the general population. See U.S. CENSUS BUREAU, OVERVIEW OF RACE AND HISPANIC ORIGIN: 2010, at 3 (2011), http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf (reporting that in 2010, “there were 50.5 million Hispanics in the United States, composing 16 percent of the total population”). However, national statistics indicate that Hispanics have similar or lower drug usage rates compared to Whites. See, e.g., SUBSTANCE ABUSE & MENTAL HEALTH SERVS.

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Case 5:13-cv-00255-C Document 62 Filed 07/28/17 Page 59 of 81 PageID 1259

ADMIN., U.S. DEP’T OF HEALTH & HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY ON DRUG USE AND HEALTH: SUMMARY OF NATIONAL FINDINGS 21, Figure 2.10 (2011), http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pdf (reporting, for example, that the usage rate for Hispanics in 2009 was 7.9% compared to 8.8% for Whites).

68

See, e.g., HUMAN RIGHTS WATCH, DECADES OF DISPARITY: DRUG ARRESTS AND RACE IN

THE UNITED STATES 1 (2009), http://www.hrw.org/sites/default/files/reports/us0309web_1.pdf

(noting that the "[t]he higher rates of black drug arrests do not reflect higher rates of black drug

offending . . . . blacks and whites engage in drug offenses - possession and sales - at roughly

comparable rates"); SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP'T OF

HEALTH & HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY ON DRUG USE AND

HEALTH: SUMMARY OF NATIONAL FINDINGS 21 (2011),

http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pdf (reporting that in 2010, the rates

of illicit drug use in the United States among persons aged 12 or older were 10.7% for African

Americans, 9.1% for Whites, and 8.1% for Hispanics); HARRY LEVINE & DEBORAH SMALL,

N.Y. CIVIL LIBERTIES UNION, MARIJUANA ARREST CRUSADE: RACIAL BIAS AND POLICE POLICY

IN NEW YORK CITY, 1997–2007, at 13–16 (2008), www.nyclu.org/files/MARIJUANA-ARREST-

CRUSADE_Final.pdf (citing U.S. Government surveys showing that Whites use marijuana at

higher rates than African Americans and Hispanics; however, the marijuana arrest rate of

Hispanics is nearly three times the arrest rate of Whites, and the marijuana arrest rate of African

Americans is five times the arrest rate of Whites).

69

PREVALENCE OF IMPRISONMENT, supra note 4, at 1, 8. Due to the nature of available data,

the Commission is using incarceration data as a proxy for conviction data.

70

Id.

71

Id.

72

MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, UNEVEN JUSTICE: STATE

RATES OF INCARCERATION BY RACE AND ETHNICITY 10 (2007),

www.sentencingproject.org/Admin%5CDocuments%5Cpublications%5Crd_stateratesofincbyrac

eandethnicity.pdf.

73

Id.

74

PAUL GUERINO ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,

PRISONERS IN 2010, at 27, Table 14 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf

(reporting that as of December 31, 2010, Black men were imprisoned at a rate of 3,074 per

100,000 Black male residents, Hispanic men were imprisoned at a rate of 1,258 per 100,000

Hispanic male residents, and White men were imprisoned at a rate of 459 per 100,000 White

male residents); cf. ONE IN 31, supra note 4, at 5 (“Black adults are four times as likely as whites

and nearly 2.5 times as likely as Hispanics to be under correctional control. One in 11 black

adults -- 9.2 percent -- was under correctional control [probation, parole, prison, or jail] at year

end 2007.”).

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75 The Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. part 1607, provide that “[employers] should maintain and have available . . . information on [the] adverse impact of [their employment selection procedures].” 29 C.F.R. § 1607.15A. “Where [an employer] has not maintained [such records, the EEOC] may draw an inference of adverse impact of the selection process from the failure of [the employer] to maintain such data . . . .” Id. § 1607.4D.
76 See, e.g., El v. SEPTA, 418 F. Supp. 2d 659, 668–69 (E.D. Pa. 2005) (finding that the plaintiff established a prima facie case of disparate impact with evidence from the defendant’s personnel records and national data sources from the U.S. Bureau of Justice Statistics and the Statistical Abstract of the U.S.), aff’d on other grounds, 479 F.3d 232 (3d Cir. 2007); Green v. Mo. Pac. R.R., 523 F.2d 1290, 1294–95 (8th Cir. 1975) (concluding that the defendant’s criminal record exclusion policy had a disparate impact based on race by evaluating local population statistics and applicant data), appeal after remand, 549 F.2d 1158, 1160 (8th Cir. 1977).
77 457 U.S. 440, 442 (1982).
78 Id. at 453–54
79 433 U.S. 321, 330 (1977).
80 See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) (stating that “[a] consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection”).
81 42 U.S.C. § 2000e-2(k)(1)(A)(i). See Griggs v. Duke Power Co., 401 U.S. 424 (1971). See also 42 U.S.C. § 2000e(m) (defining the term “demonstrates” to mean “meets the burdens of production and persuasion”).
82 422 U.S. 405 (1975).
83 433 U.S. 321 (1977).
84 137 CONG. REC. 15273 (1991) (statement of Sen. Danforth) (“[T]he terms ‘business necessity’ and ‘job related’ are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co, and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio.” (citations omitted)). Section 105(b) of the Civil Rights Act of 1991 provides that only the interpretive memorandum read by Senator Danforth in the Congressional Record may be considered legislative history or relied upon in construing or applying the business necessity standard.
85 401 U.S. at 431, 436.
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86 422 U.S. at 430–31 (endorsing the EEOC’s position that discriminatory tests are impermissible unless shown, by professionally acceptable methods, to predict or correlate with “‘important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated’” (quoting 29 C.F.R. § 1607.4(c))).

87 433 U.S. at 331–32 (concluding that using height and weight as proxies for strength did not satisfy the business necessity defense because the employer failed to establish a correlation between height and weight and the necessary strength, and also did not specify the amount of strength necessary to perform the job safely and efficiently).

88 Id. at 331 n.14.

89 523 F.2d 1290, 1293 (8th Cir. 1975). “In response to a question on an application form, Green [a 29-year-old African American man] disclosed that he had been convicted in December 1967 for refusing military induction. He stated that he had served 21 months in prison until paroled on July 24, 1970.” Id. at 1292–93.

90 Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977) (upholding the district court’s injunction prohibiting the employer from using an applicant’s conviction record as an absolute bar to employment but allowing it to consider a prior criminal record as a factor in making individual hiring decisions, as long as the defendant took these three factors into account).

91 Id. (referring to completion of the sentence rather than completion of parole).

92

Id.

93 479 F.3d 232 (3d Cir. 2007).

94

Id. at 235.

95 Id. at 235, 236.

96

Id. at 235.

97

Id. at 244.

98

Id. at 244–45.

99 Id. at 247. Cf. Shawn Bushway et al., The Predictive Value of Criminal Background Checks: Do Age and Criminal History Affect Time to Redemption?, 49 CRIMINOLOGY 27, 52 (2011) [hereinafter The Predictive Value of Criminal Background Checks] (“Given the results of the current as well as previous [recidivism] studies, the 40-year period put forward in El v. SEPTA (2007) . . . seems too old of a score to be still in need of settlement.”).

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100 El, 479 F.3d at 248.
101 Some states have enacted laws to limit employer inquiries concerning all or some arrest records. See BACKGROUND CHECKS, supra note 25, at 48–49. At least 13 states have statutes explicitly prohibiting arrest record inquiries and/or dissemination subject to certain exceptions. See, e.g., Alaska (ALASKA STAT. § 12.62.160(b)(8)); Arkansas (ARK. CODE ANN. § 12-121009(c)); California (CAL. LAB. CODE § 432.7(a)); Connecticut (CONN. GEN. STAT. § 46a-80(e)); Illinois (775 ILL. COMP. STAT. § 5/2-103(A)) (dealing with arrest records that have been ordered expunged, sealed, or impounded); Massachusetts (MASS. GEN. LAWS ch. 151B § 4(9)); Michigan (MICH COMP. LAWS § 37.2205a(1) (applying to misdemeanor arrests only)); Nebraska (NEB. REV. STAT. § 29-3523(2)) (ordering no dissemination of arrest records under certain conditions and specified time periods)); New York (N.Y. EXEC. LAW § 296(16)); North Dakota (N.D. CENT. CODE § 12-60-16.6(2)); Pennsylvania (18 PA. CONS. STAT. § 9121(b)(2)); Rhode Island (R.I. GEN. LAWS § 28-5-7(7)), and Wisconsin (WIS. STAT. §§ 111.321, 111.335a).
102 See United States v. Armstrong, 517 U.S. 456, 464 (1996) (discussing federal prosecutors’ broad discretionary authority to determine whether to prosecute cases and whether to bring charges before a grand jury); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (explaining same for state prosecutors); see also THOMAS H. COHEN & TRACEY KYCKELHAHN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 2006, at 10, Table 11 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf (reporting that in the 75 largest counties in the country, nearly one-third of the felony arrests did not result in a conviction because the charges against the defendants were dismissed).
103 Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 241 (1957) (“The mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct.”); United States. v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006) (upholding a preliminary jury instruction that stated that a “defendant is presumed to be innocent unless proven guilty. The indictment against the Defendant is only an accusation, nothing more. It’s not proof of guilt or anything else.”); see Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (“[I]nformation concerning a prospective employee’s record of arrests without convictions, is irrelevant to [an applicant’s] suitability or qualification for employment.”), modified on other grounds, 472 F.2d 631 (9th Cir. 1972); Dozier v. Chupka, 395 F. Supp. 836, 850 n.10 (S.D. Ohio 1975) (stating that the use of arrest records was too crude a predictor of an employee’s predilection for theft where there were no procedural safeguards to prevent reliance on unwarranted arrests); City of Cairo v. Ill. Fair Empl. Prac. Comm., 8 Empl. Prac. Dec. (CCH) & 9682 (Ill. App. Ct. 1974) (concluding that, where applicants sought to become police officers, they could not be absolutely barred from appointment solely because they had been arrested, as distinguished from convicted); see also EEOC Dec. 74-83, ¶ 6424 (CCH) (1983) (finding no business justification for an employer’s unconditional termination of all employees with arrest records (all five employees terminated were Black), purportedly to reduce thefts in the workplace; the employer produced no evidence that these particular employees had been involved in any of the thefts, or that all people who are arrested but not convicted are prone towards crime in the future); EEOC Dec. 76-87, ¶ 6665 (CCH) (1983) (holding that an applicant who sought to become a police officer could not be rejected based on one arrest five years earlier
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for riding in a stolen car when he asserted that he did not know that the car was stolen and the charge was dismissed).
104 See STATE CRIMINAL HISTORY, supra note 37, at 2; see also BACKGROUND CHECKS, supra note 25, at 17.
105 See supra notes 39–40.
106 See Clark v. Arizona, 548 U.S. 735, 766 (2006) (“The first presumption [in a criminal case] is that a defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense charged. . . .”). See also FED. R. CRIM P 11 (criminal procedure rule governing pleas). The Supreme Court has concluded that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations. See generally Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012).
107 See supra text accompanying note 39.
108 See e.g., HAW. REV. STAT. § 378-2.5(b). Under this provision, the employer may withdraw the offer of employment if the prospective employee has a conviction record “that bears a rational relationship to the duties and responsibilities of the position.” Id. See also CONN. GEN. STAT. § 46a-80(b) (“[N]o employer . . . shall inquire about a prospective employee’s past convictions until such prospective employee has been deemed otherwise qualified for the position.”); MINN. STAT. § 364.021(a) (“[A] public employer may not inquire or consider the criminal record or criminal history of an applicant for public employment until the applicant has been selected for an interview by the employer.”). State fair employment practices agencies have information about applicable state law.
109 See generally NAT’L LEAGUE OF CITIES & NAT’L EMP’T LAW PROJECT, CITIES PAVE THE WAY: PROMISING REENTRY POLICIES THAT PROMOTE LOCAL HIRING OF PEOPLE WITH CRIMINAL RECORDS (2010), www.nelp.org/page/-/SCLP/2010/CitiesPavetheWay.pdf?nocdn=1 (identifying local initiatives that address ways to increase employment opportunities for individuals with criminal records, including delaying a background check until the final stages of the hiring process, leveraging development funds, and expanding bid incentive programs to promote local hiring priorities); NAT’L EMP’T LAW PROJECT, CITY AND COUNTY HIRING INITIATIVES (2010), www.nelp.org/page/-/SCLP/CityandCountyHiringInitiatives.pdf (discussing the various city and county initiatives that have removed questions regarding criminal history from the job application and have waited until after a conditional offer of employment has been made to conduct a background check and inquire about the applicant’s criminal background).
110 Several federal laws automatically prohibit employing individuals with certain felony convictions or, in some cases, misdemeanor convictions. See, e.g., 5 U.S.C. § 7371(b) (requiring the mandatory removal of any federal law enforcement officer who is convicted of a felony); 46 U.S.C. § 70105(c)(1)(A) (mandating that individuals who have been convicted of espionage, sedition, treason or terrorism be permanently disqualified from receiving a biometric transportation security card and thereby excluded from port work employment); 42 U.S.C.
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§ 13726(b)(1) (disqualifying persons with felony convictions or domestic violence convictions from working for a private prisoner transport company); 25 U.S.C. § 3207(b) (prohibiting individuals with a felony conviction, or any of two or more misdemeanor convictions, from working with Indian children if their convictions involved crimes of violence, sexual assault, molestation, exploitation, contact or prostitution, crimes against persons, or offenses committed against children); 18 U.S.C. § 922(g)(1), (9) (prohibiting an individual convicted of a felony or a misdemeanor for domestic violence from possessing a firearm, thereby excluding such individual from a wide range of jobs that require such possession); 18 U.S.C. § 2381 (prohibiting individuals convicted of treason from “holding any office under the United States”). Other federal laws prohibit employing individuals with certain convictions for a defined time period. See, e.g., 5 U.S.C. § 7313(a) (prohibiting individuals convicted of a felony for inciting a riot or civil disorder from holding any position in the federal government for five years after the date of the conviction); 12 U.S.C. § 1829 (requiring a ten-year ban on employing individuals in banks if they have certain financial-related convictions); 49 U.S.C. § 44936(b)(1)(B) (imposing a ten-year ban on employing an individual as a security screener for an air carrier if that individuals has been convicted of specified crimes).

111 See 29 C.F.R. § 1607.5 (describing the general standards for validity studies).

112

Id.

113 Id. § 1607.6B. The following subsections state:

(1) Where informal or unscored procedures are used. When an informal or unscored selection procedure which has an adverse impact is utilized, the user should eliminate the adverse impact, or modify the procedure to one which is a formal, scored or quantified measure or combination of measures and then validate the procedure in accord with these guidelines, or otherwise justify continued use of the procedure in accord with Federal law. (2) Where formal and scored procedures are used. When a formal and scored selection procedure is used which has an adverse impact, the validation techniques contemplated by these guidelines usually should be followed if technically feasible. Where the user cannot or need not follow the validation techniques anticipated by these guidelines, the user should either modify the procedure to eliminate adverse impact or otherwise justify continued use of the procedure in accord with Federal law.

Id. § 1607.6A, B(1)–(2).
114 See, e.g., Brent W. Roberts et al., Predicting the Counterproductive Employee in a Childto-Adult Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1430 (2007), http://internal.psychology.illinois.edu/~broberts/Roberts,%20Harms,%20Caspi,%20&%20Moffit t,%202007.pdf (finding that in a study of New Zealand residents from birth to age 26, “[a]dolescent criminal convictions were unrelated to committing counterproductive activities at work [such as tardiness, absenteeism, disciplinary problems, etc.]. In fact, according to the

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[results of the study], people with an adolescent criminal conviction record were less likely to get in a fight with their supervisor or steal things from work.”).
115 See OHIO REV. CODE ANN. § 2913.02.
116 523 F.2d at 1298 (stating that “[w]e cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed”).
117 479 F.3d at 247.
118 See, e.g., Keith Soothill & Brian Francis, When do Ex-Offenders Become Like NonOffenders?, 48 HOWARD J. OF CRIM. JUST., 373, 380–81 (2009) (examining conviction data from Britain and Wales, a 2009 study found that the risk of recidivism declined for the groups with prior records and eventually converged within 10 to 15 years with the risk of those of the nonoffending comparison groups); Alfred Blumstein & Kiminori Nakamura, Redemption in the Presence of Widespread Criminal Background Checks, 47 CRIMINOLOGY 327 (2009) (concluding that there may be a “point of redemption” (i.e., a point in time where an individual’s risk of re-offending or re-arrest is reasonably comparable to individuals with no prior criminal record) for individuals arrested for certain offenses if they remain crime free for a certain number of years); Megan C. Kurlychek, Robert Brame & Shawn D. Bushway, Enduring Risk? Old Criminal Records and Predictions of Future Criminal Involvement, 53 CRIME & DELINQUENCY 64 (2007) (analyzing juvenile police contacts and Racine, Wisconsin police contacts for an aggregate of crimes for 670 males born in 1942 and concluding that, after seven years, the risk of a new offense approximates that of a person without a criminal record); Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483 (2006) (evaluating juvenile police contacts and arrest dates from Philadelphia police records for an aggregate of crimes for individuals born in 1958, a 2006 study concluded that the risk of recidivism decreases over time and that, six or seven years after an arrest, an individual’s risk of re-arrest approximates that of an individual who has never been arrested).
119 Griggs, 401 U.S. at 431.
120 523 F.2d at 1298; see also Field v. Orkin Extermination Co., No. Civ. A. 00-5913, 2002 WL 32345739, at *1 (E.D. Pa. Feb. 21, 2002) (unpublished) (“[A] blanket policy of denying employment to any person having a criminal conviction is a [per se] violation of Title VII.”). The only exception would be if such an exclusion were required by federal law or regulation. See, e.g., supra note 110.
121 Cf. Field, 2002 WL 32345739, at *1. In Field, an employee of ten years was fired after a new company that acquired her former employer discovered her 6-year-old felony conviction. The new company had a blanket policy of firing anyone with a felony conviction less than 10 years old. The court granted summary judgment for the employee because the employer’s argument that her conviction was related to her job qualifications was “weak at best,” especially
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given her positive employment history with her former employer. Id.
122 Recidivism rates tend to decline as ex-offenders’ ages increase. A 2011 study found that an individual’s age at conviction is a variable that has a “substantial and significant impact on recidivism.” The Predictive Value of Criminal Background Checks, supra note 99, at 43. For example, the 26-year-olds in the study, with no prior criminal convictions, had a 19.6% chance of reoffending in their first year after their first conviction, compared to the 36-year-olds who had an 8.8% chance of reoffending during the same time period, and the 46-year-olds who had a 5.3% of reoffending. Id. at 46. See also PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: RECIDIVISM OF PRISONERS RELEASED IN 1994, at 7 (2002), http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf (finding that, although 55.7% of ex-offenders aged 14–17 released in 1994 were reconvicted within three years, the percentage declined to 29.7% for ex-offenders aged 45 and older who were released the same year).
Consideration of an applicant’s age at the time the offense occurred or at his release from prison would benefit older individuals and, therefore, would not violate the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. See Age Discrimination in Employment Act, 29 C.F.R. § 1625.2 (“Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old.”); see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (concluding that the ADEA does not preclude an employer from favoring an older employee over a younger one within the protected age group).
123 See Laura Moskowitz, Statement of Laura Moskowitz, Staff Attorney, National Employment Law Project’s Second Chance Labor Project, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/11-20-08/moskowitz.cfm (last visited April 23, 2012) (stating that one of the factors that is relevant to the assessment of an ex-offender’s risk to a workplace and to the business necessity analysis, is the “length and consistency of the person’s work history, including whether the person has been recently employed”; also noting that various studies have “shown a strong relationship between employment and decreases in crime and recidivism”). But see Stephen J. Tripodi et al., Is Employment Associated With Reduced Recidivism?: The Complex Relationship Between Employment and Crime, 54 INT’L J. OF OFFENDER THERAPY AND COMP. CRIMINOLOGY 716, 716 (2010) (finding that “[b]ecoming employed after incarceration, although apparently providing initial motivation to desist from crime, does not seem to be on its own sufficient to prevent recidivism for many parolees”).
124 See WENDY ERISMAN & JEANNE BAYER CONTARDO, INST. FOR HIGHER EDUC. POLICY, LEARNING TO REDUCE RECIDIVISM: A 50 STATE ANALYSIS OF POSTSECONDARY CORRECTIONAL EDUCATION 5 (2005), http://www.ihep.org/assets/files/publications/gl/LearningReduceRecidivism.pdf (finding that increasing higher education for prisoners enhances their prospects for employment and serves as a cost-effective approach to reducing recidivism); see also John H. Laud & Robert J. Sampson, Understanding Desistance from Crime, 28 CRIME & JUST. 1, 17–24 (2001), http://www.ncjrs.gov/pdffiles1/Digitization/192542192549NCJRS.pdf (stating that factors associated with personal rehabilitation and social
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stability, such as stable employment, family and community involvement, and recovery from substance abuse, are correlated with a decreased risk of recidivism).
125 Some employers have expressed a greater willingness to hire ex-offenders who have had an ongoing relationship with third party intermediary agencies that provide supportive services such as drug testing, referrals for social services, transportation, child care, clothing, and food. See Amy L. Solomon et al., From Prison to Work: The Employment Dimensions of Prisoner Reentry, 2004 URBAN INST. 20, http://www.urban.org/UploadedPDF/411097_From_Prison_to_Work.pdf. These types of services can help ex-offenders avoid problems that may interfere with their ability to obtain and maintain employment. Id.; see generally Victoria Kane, Transcript of 7-26-11 Meeting, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/7-2611/transcript.cfm#kane (last visited April 23, 2012) (describing why employers should partner with organizations that provide supportive services to ex-offenders).
126 See generally REENTRY MYTHBUSTER! ON FEDERAL BONDING PROGRAM, supra note 16; Work Opportunity Tax Credit (WOTC), EMP’T & TRAINING ADMIN., U.S. DEP’T OF LABOR, http://www.doleta.gov/business/incentives/opptax/ (last visited April 3, 2012); Directory of State Bonding Coordinators, EMP’T & TRAINING ADMIN., U.S. DEP’T OF LABOR, http://www.doleta.gov/usworkforce/onestop/FBPContact.cfm (last visited April 3, 2012); Federal Bonding Program - Background, U.S. DEP’T OF LABOR, http://www.bonds4jobs.com/program-background.html (last visited April 3, 2012); Bureau of Prisons: UNICOR’s Federal Bonding Program, http://www.bop.gov/inmate_programs/itb_bonding.jsp (last visited April 3, 2012).
127 This example is loosely based on a study conducted by Alfred Blumstein and Kiminori Nakamura measuring the risk of recidivism for individuals who have committed burglary, robbery, or aggravated assault. See Blumstein & Nakamura, supra note 118.
128 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C). See also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 998 (1988).
129 See Exec. Order No. 12,067, 3 C.F.R. 206 (1978 Comp.).
130 See 49 U.S.C. §§ 44935(e)(2)(B), 44936(a)(1), (b)(1). The statute mandates a criminal background check.
131 See 5 U.S.C. § 7371(b) (requiring mandatory removal from employment of law enforcement officers convicted of felonies).
132 See 42 U.S.C. § 13041(c) (“Any conviction for a sex crime, an offense involving a child victim, or a drug felony may be grounds for denying employment or for dismissal of an employee. . . .”).
133 12 U.S.C. § 1829.
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134 46 U.S.C. § 70105(c).
135 Other jobs and programs subject to federally-imposed restrictions based on criminal convictions include the business of insurance (18 U.S.C. § 1033(e)), employee benefits employee (29 U.S.C. § 1111(a)), participation in Medicare and state health care programs (42 U.S.C. § 1320a-7(a)–(b)), defense contractor (10 U.S.C. § 2408(a)), prisoner transportation (42 U.S.C. § 13726b(b)(1)), and court-imposed occupational restrictions (18 U.S.C. §§ 3563(b)(5), 3583(d)). This list is not meant to be exhaustive.
136 See, e.g., federal statutes governing commercial motor vehicle operator’s licenses (49 U.S.C. § 31310(b)-(h)), locomotive operator licenses (49 U.S.C. § 20135(b)(4)(B)), and certificates, ratings, and authorizations for pilots, flight instructors, and ground instructors (49 U.S.C. §§ 44709(b)(2), 44710(b), 4711(c); 14 C.F.R. § 61.15).
137 See, e.g., federal statutes governing loan originator licensing/registration (12 U.S.C. § 5104(b)(2)), registration of brokers and dealers (15 U.S.C. § 78o(b)(4)(B)), registration of commodity dealers (7 U.S.C. § 12a(2)(D), (3)(D), (E), (H)), and registration of investment advisers (15 U.S.C. § 80b-3(e)(2)-(3), (f)).
138 See, e.g., custom broker’s licenses (19 U.S.C. § 1641(d)(1)(B)), export licenses (50 U.S.C. App. § 2410(h)), and arms export (22 U.S.C. § 2778(g)).
139 See, e.g., grain inspector’s licenses (7 U.S.C. § 85), merchant mariner’s documents, licenses, or certificates of registry (46 U.S.C. § 7503(b)), licenses to import, manufacture, or deal in explosives or permits to use explosives (18 U.S.C. § 843(d)), and farm labor contractor’s certificates of registration (29 U.S.C. § 1813(a)(5)). This list of federally-imposed restrictions on occupational licenses and registrations for individuals with certain criminal convictions is not meant to be exhaustive. For additional information, please consult the relevant federal agency or department.
140 See 12 U.S.C. § 1829(a)(1). The statute imposes a ten-year ban for individuals who have been convicted of certain financial crimes such as corruption involving the receipt of commissions or gifts for procuring loans (18 U.S.C. § 215), embezzlement or theft by an officer/employee of a lending, credit, or insurance institution (18 U.S.C § 657), false or fraudulent statements by an officer/employee of the federal reserve or a depository institution (18 U.S.C. § 1005), or fraud by wire, radio, or television that affects a financial institution (18 U.S.C. § 1343), among other crimes. See 12 U.S.C. § 1829(a)(2)(A)(i)(I), (II). Individuals who have either been convicted of the crimes listed in § 1829(a)(2)(A), or conspiracy to commit those crimes, will not receive an exception to the application of the 10-year ban from the FDIC. 12 U.S.C. § 1829(a)(2)(A).
141 See FED. DEPOSIT INS. CORP., FDIC STATEMENT OF POLICY FOR SECTION 19 OF THE FDI ACT, § C, “PROCEDURES” (amended May 13, 2011), http://www.fdic.gov/regulations/laws/rules/5000-1300.html [hereinafter FDIC POLICY]; see also
46

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Statement of Policy, 63 Fed. Reg. 66,177, 66,184 (Dec. 1, 1998); Clarification of Statement of Policy, 76 Fed. Reg. 28,031 (May 13, 2011) (clarifying the FDIC’s Statement of Policy for Section 19 of the FDI Act).
“Approval is automatically granted and an application [for a waiver] will not be required where [an individual who has been convicted of] the covered offense [criminal offenses involving dishonesty, breach of trust, or money laundering] . . . meets all of the [“de minimis”] criteria” set forth in the FDIC’s Statement of Policy. FDIC POLICY, supra, § B (5). These criteria include the following: (1) there is only one conviction or program of record for a covered offense; (2) the offense was punishable by imprisonment for a term of one year or less and/or a fine of $1,000 or less, and the individual did not serve time in jail; (3) the conviction or program was entered at least five years prior to the date an application would otherwise be required; and (4) the offense did not involve an insured depository institution or insured credit union. Id. Additionally, an individual’s conviction for writing a “bad” check will be considered a de minimis offense, even if it involved an insured depository institution or insured credit union, if: (1) all other requirements of the de minimis offense provisions are met; (2) the aggregate total face value of the bad or insufficient funds check(s) cited in the conviction was $1000 or less; and (3) no insured depository institution or insured credit union was a payee on any of the bad or insufficient funds checks that were the basis of the conviction. Id.
142 See FDIC POLICY, supra note 141, § C, “PROCEDURES.”
143 Id. But cf. NAT’L H.I.R.E. NETWORK, PEOPLE WITH CRIMINAL RECORDS WORKING IN FINANCIAL INSTITUTIONS: THE RULES ON FDIC WAIVERS, http://www.hirenetwork.org/FDIC.html (“Institutions rarely seek a waiver, except for higher level positions when the candidate is someone the institution wants to hire. Individuals can only seek FDIC approval themselves if they ask the FDIC to waive the usual requirement. Most individuals probably are unaware that they have this right.”); FED. DEPOSIT INSUR. CORP. 2010 ANNUAL REPORT, § VI.A: KEY STATISTICS, FDIC ACTIONS ON FINANCIAL INSTITUTION APPLICATIONS 2008–2010 (2011), http://www.fdic.gov/about/strategic/report/2010annualreport/chpt6-01.html (reporting that between 2008 and 2010, the FDIC approved a total of 38 requests for consent to employ individuals with covered offenses in their background; the agency did not deny any requests during this time period).
144 FDIC POLICY, supra note 141, § D, “EVALUATION OF SECTION 19 APPLICATIONS” (listing the factors that are considered in this waiver review process, which include: (1) the nature and circumstances underlying the offense; (2) “[e]vidence of rehabilitation including the person’s reputation since the conviction . . . the person’s age at the time of conviction . . . and the time which has elapsed since the conviction”; (3) the position to be held in the insured institution; (4) the amount of influence/control the individual will be able to exercise over management affairs; (5) management’s ability to control and supervise the individual’s activities; (6) the degree of ownership the individual will have in the insured institution; (7) whether the institution’s fidelity bond coverage applies to the individual; (8) the opinion of the applicable federal and/or state regulators; and (9) any other relevant factors).
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145 See 49 C.F.R. §§ 1515.7 (describing the procedures for waiver of criminal offenses, among other standards), 1515.5 (explaining how to appeal the Initial Determination of Threat Assessment based on a criminal conviction). In practice, some worker advocacy groups have criticized the TWIC appeal process due to prolonged delays, which leaves many workers jobless; especially workers of color. See generally MAURICE EMSELLEM ET AL., NAT’L EMP’T LAW PROJECT, A SCORECARD ON THE POST-911 PORT WORKER BACKGROUND CHECKS: MODEL WORKER PROTECTIONS PROVIDE A LIFELINE FOR PEOPLE OF COLOR, WHILE MAJOR TSA DELAYS LEAVE THOUSANDS JOBLESS DURING THE RECESSION (2009), http://nelp.3cdn.net/2d5508b4cec6e13da6 upm6b20e5.pdf.
The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 6201, 124 Stat. 721 (2010) (the Act) includes a process to appeal or dispute the accuracy of information obtained from criminal records. The Act requires participating states to perform background checks on applicants and current employees who have direct access to patients in long-term care facilities, such as nursing homes, to determine if they have been convicted of an offense or have other disqualifying information in their background, such as a finding of patient or resident abuse, that would disqualify them from employment under the Social Security Act or as specified by state law. See 42 U.S.C. § 1320a-7l(a)(3)(A), (a)(4)(B), (6)(A)–(E). The background check involves an individualized assessment of the relevance of a conviction or other disqualifying information. The Act protects applicants and employees in several ways, for example, by: (1) providing a 60day provisional period of employment for the prospective employee, pending the completion of the criminal records check; (2) providing an independent process to appeal or dispute the accuracy of the information obtained in the criminal records check; and (3) allowing the employee to remain employed (subject to direct on-site supervision) during the appeals process. 42 U.S.C. § 1320a-7l(a)(4)(B)(iii), (iv).
146 See 46 U.S.C. § 70105(d); see generally TWIC Program, 49 C.F.R. § 1572.103 (listing the disqualifying offenses for maritime and land transportation security credentials, such as convictions and findings of not guilty by reason of insanity for espionage, murder, or unlawful possession of an explosive; also listing temporarily disqualifying offenses, within seven years of conviction or five years of release from incarceration, including dishonesty, fraud, or misrepresentation (expressly excluding welfare fraud and passing bad checks), firearms violations, and distribution, intent to distribute, or importation of controlled substances).
147 46 U.S.C. § 70105(c)(1)(A)–(B).
148 46 U.S.C. § 70105(c)(1)(B)(iii).
149 See 46 U.S.C. § 70105(c)(1)(A)(iv) (listing “Federal crime of terrorism” as a permanent disqualifying offense); see also 18 U.S.C. § 2332b(g)(5)(B) (defining “Federal crime of terrorism” to include the use of weapons of mass destruction under § 2332a).
150 See 49 C.F.R. § 1515.7(a)(i) (explaining that only certain applicants with disqualifying crimes in their backgrounds may apply for a waiver; these applicants do not include individuals
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who have been convicted of a Federal crime of terrorism as defined by 18 U.S.C. § 2332b(g)).
151 These positions are defined as “national security positions” and include positions that “involve activities of the Government that are concerned with the protection of the nation from foreign aggression or espionage, including development of defense plans or policies, intelligence or counterintelligence activities, and related activities concerned with the preservation of the military strength of the United States” or “require regular use of, or access to, classified information.” 5 C.F.R. § 732.102(a)(1)–(2). The requirements for “national security positions” apply to competitive service positions, Senior Executive Service positions filled by career appointment within the Executive Branch, and excepted service positions within the Executive Branch. Id. § 732.102(b). The head of each Federal agency can designate any position within that department or agency as a “sensitive position” if the position “could bring about, by virtue of the nature of the position, a material adverse effect on the national security.” Id. § 732.201(a). Designation of a position as a “sensitive position” will fall under one of three sensitivity levels: Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive. Id.
152 See Exec. Order No. 12,968, § 3.1(b), 3 C.F.R. 391 (1995 Comp.):
[E]ligibility for access to classified information shall be granted only to employees who are United States citizens for whom an appropriate investigation has been completed and whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honestly, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information. A determination of eligibility for access to such information is a discretionary security decision based on judgments by appropriately trained adjudicative personnel. Eligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States, and any doubt shall be resolved in favor of the national security.
153 42 U.S.C. § 2000e-2(g); see, e.g., Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir. 2005) (“[E]mployment actions based on denial of a security clearance are not subject to judicial review, including under Title VII.”); Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (“[A]n adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII.”).
154 See Policy Guidance on the use of the national security exception contained in § 703(g) of Title VII of the Civil Rights Act of 1964, as amended, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, § II, Legislative History (May 1, 1989), http://www.eeoc.gov/policy/docs/national_security_exemption.html (“[N]ational security requirements must be applied equally without regard to race, sex, color, religion or national origin.”); see also Jones v. Ashcroft, 321 F. Supp. 2d 1, 8 (D.D.C. 2004) (indicating that the
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national security exception did not apply because there was no evidence that the government considered national security as a basis for its decision not to hire the plaintiff at any time before the commencement of the plaintiff’s lawsuit, where the plaintiff had not been forthright about an arrest).
155 Federal contractor employees may challenge the denial of a security clearance with the EEOC or the Office of Contract Compliance Programs when the denial is based on race, color, religion, sex, or national origin. See generally Exec. Order No. 11,246, 3 C.F.R. 339 (1964–1965 Comp.).
156 42 U.S.C. § 2000e-16(a).
157 Robert H. Shriver, III, Written Testimony of Robert H. Shriver, III, Senior Policy Counsel for the U.S. Office of Personnel Management, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/shriver.cfm (last visited April 23, 2012) (stating that “with just a few exceptions, criminal convictions do not automatically disqualify an applicant from employment in the competitive civil service”); see also REENTRY MYTHBUSTER! ON FEDERAL HIRING POLICIES, supra note 16 (“The Federal Government employs people with criminal records with the requisite knowledge, skills and abilities.”). But see supra note 110, listing several federal statutes that prohibit individuals with certain convictions from working as federal law enforcement officers or port workers, or with private prisoner transport companies.
158 OPM has jurisdiction to establish the federal government’s suitability policy for competitive service positions, certain excepted service positions, and career appointments in the Senior Executive Service. See 5 C.F.R. §§ 731.101(a) (stating that OPM has been directed “to examine ‘suitability’ for competitive Federal employment”), 731.101(b) (defining the covered positions within OPM’s jurisdiction); see also Shriver, supra note 157.
OPM is also responsible for establishing standards that help agencies decide whether to grant their employees and contractor personnel long-term access to federal facilities and information systems. See Homeland Security Presidential Directive 12: Policy for a Common Identification Standard for Federal Employees and Contractors, 2 PUB. PAPERS 1765 (Aug. 27, 2004) (“establishing a mandatory, Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors [including contractor employees]”); see also Exec. Order No. 13,467, § 2.3(b), 3 C.F.R. 196 (2009 Comp.) (“[T]he Director of [OPM] . . . [is] responsible for developing and implementing uniform and consistent policies and procedures to ensure the effective, efficient, and timely completion of investigations and adjudications relating to determinations of suitability and eligibility for logical and physical access.”); see generally Shriver, supra note 157.
159 5 C.F.R. § 731.101(a).
160 See 5 C.F.R. §§ 731.205(a) (stating that if an agency finds applicants unsuitable based on the factors listed in 5 C.F.R. § 731.202, it may, in its discretion, bar those applicants from federal employment for three years), § 731.202(b) (disqualifying factors from federal civilian
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employment may include: misconduct or negligence in employment; material, intentional false statement, or deception or fraud in examination or appointment; refusal to furnish testimony as required by 5 C.F.R. § 5.4; alcohol abuse without evidence of substantial rehabilitation; illegal use of narcotics, drugs, or other controlled substances; and knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force).

161 See id. § 731.202(c).

162

Id.

163 See generally Shriver, supra note 157. See also REENTRY MYTHBUSTER! ON FEDERAL HIRING POLICIES, supra note 16 (“Consistent with Merit System Principles, [federal] agencies [and departments] are required to consider people with criminal records when filling positions if they are the best candidates and can comply with requirements.”).

164 See generally EEOC Informal Discussion Letter (March 19, 2007), http://www.eeoc.gov/eeoc/foia/letters/2007/arrest_and_conviction_records.html#N1 (discussing the EEOC’s concerns with changes to OPM’s suitability regulations at 5 CFR part 731).

165 See Stephen Saltzburg, Transcript of 7-26-11 Meeting, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/transcript.cfm#saltzburg (last visited April 23, 2012) (discussing the findings from the American Bar Association’s (ABA) Collateral Consequences of Conviction Project, which found that in 17 states that it has examined to date, 84% of the collateral sanctions against ex-offenders relate to employment). For more information about the ABA’s project, visit: Janet Levine, ABA Criminal Justice Section Collateral Consequences Project, INST. FOR SURVEY RESEARCH, TEMPLE UNIV., http://isrweb.isr.temple.edu/projects/accproject/ (last visited April 20, 2012). In April 2011, Attorney General Holder sent a letter to every state Attorney General, with a copy to every Governor, asking them to “evaluate the collateral consequences” of criminal convictions in their state, such as employment-related restrictions on ex-offenders, and “to determine whether those [consequences] that impose burdens on individuals . . . without increasing public safety should be eliminated.” Letter from Eric H. Holder, Jr., Att’y Gen., Dep’t of Justice, to state Attorney Generals and Governors (April 18, 2011), http://www.nationalreentryresourcecenter.org/documents/0000/1088/Reentry_Council_AG_Lett er.pdf.

Most states regulate occupations that involve responsibility for vulnerable citizens such as the elderly and children. See STATE CRIMINAL HISTORY, supra note 37, at 10 (“Fifty states and the District of Columbia reported that criminal history background checks are legally required” for several occupations such as nurses/elder caregivers, daycare providers, caregivers in residential facilities, school teachers, and nonteaching school employees). For example, Hawaii’s Department of Human Services may deny applicants licensing privileges to operate a childcare facility if: (1) the applicant or any prospective employee has been convicted of a crime other than a minor traffic violation or has been confirmed to have abused or neglected a child or threatened harm; and (2) the department finds that the criminal history or child abuse record of

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Case 5:13-cv-00255-C Document 62 Filed 07/28/17 Page 74 of 81 PageID 1274 the applicant or prospective employee may pose a risk to the health, safety, or well-being of children. See HAW. REV. STAT. § 346-154(e)(1)–(2). 166 42 U.S.C. § 2000e-7. 167 See Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 210 (1991) (noting that “[i]f state tort law furthers discrimination in the workplace and prevents employers from hiring women who are capable of manufacturing the product as efficiently as men, then it will impede the accomplishment of Congress’ goals in enacting Title VII”); Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 380 (2d Cir. 2006) (affirming the district court’s conclusion that “the mandates of state law are no defense to Title VII liability”).
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EXHIBIT B

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EXHIBIT C

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 Case 5:13-cv-00255-C Document 117 Filed 02/01/18 Page 1 of 4 PageID 2494

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

STATE OF TEXAS, Plaintiff,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Defendants.

) ) ) ) ) ) ) ) ) ) Civil Action No. 5:13-CV-255-C

ORDER Came on to be heard on October 17, 2017, the parties' Motions for Summary Judgment, filed September 14, 2017. After a hearing on the Motions, the Court instructed the parties to file proposed findings of fact and conclusions oflaw. Plaintiff and Defendants filed their respective proposed findings and conclusions on October 24, 2017. On October 25, 2017, a motion for leave to file Amici Curiae Brief was filed by Beverly Harrison, the Texas State Conference ofthe NAACP, the NAACP Legal Defense & Education Fund, Inc., and the National Employment Law Project. That Motion is GRANTED. Texas filed this lawsuit seeking declaratory and injunctive relief against the Equal Employment Opportunity Commission ("EEOC") and the Attorney General ofthe United States, challenging the EEOC's "Enforcement Guidance on the Consideration ofArrest and Conviction Records in Employment Decisions Under Title VII" ("Guidance"). Texas argues that the Guidance directly interferes with its authority to impose categorical bans on hiring felons and to be able to discretionarily reject felons for certain jobs. Specifically, Texas's Second Amended

Case 5:13-cv-00255-C Document 117 Filed 02/01/18 Page 2 of 4 PageID 2495
Complaint contains two causes of action. Count I is brought under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and seeks: (1) a declaration that Texas has a right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories of convicted felons) from serving in any job the State and its Legislature deem appropriate; and (2) an injunction preventing Defendants from enforcing the interpretation ofTitle VII that appears in the Guidance and from issuing right-to-sue letters. Count II is brought under the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, and asks the Court to hold the Guidance unlawful and to set it aside as: (1) a substantive rule issued without notice and the opportunity for comment; (2) outside the scope of statutory authority given to the EEOC; and (3) an unreasonable interpretation ofTitle VII.
The EEOC argues that the Guidance has not yet been enforced against Texas (creating a ripeness issue) and that the only purpose ofthe Guidance was to update and consolidate all of the EEOC's prior policy statements about Title VII and the use of criminal records in employment decisions. The EEOC additionally contends that the Guidance is not an expansion ofTitle VII's prohibition against hiring policies that create a disparate impact upon protected classes (in this instance, certain racial classes are alleged to be disproportionately impacted by consideration of felony convictions as a ban for employment opportunities).
After careful review ofthe arguments presented by the parties in their Motions for Summary Judgment (and at the October 17 hearing on said Motions), evaluation of the respective Proposed Findings ofFact and Conclusions ofLaw, and consideration ofthe Amici Curiae Brief, the Court makes the following findings and conclusions.
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The Court declines to declare that Texas has a right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories ofconvicted felom) fi:om serving in any job the State and its Legislature deems appropriate. There are certainly many categories ofemployment for which specific prior criminal history profiles ofapplicants would be a poor fit and pose far too great a risk to the interests of the State ofTexas and it~ citizens. However, there may well be instances in which otherwise qualified job applicants with certain felony oonvictions in their criminal histories pose no objectively reasonable risk to the interests of the State ofTexas and its citizens. To find otherwise would be illogical. Thus, a categorical denial ofemployment opportunities to all job applicants oonvicted ofa prior felony paints with too broad a brush and denies meaningful opportunities ofemployment to many who could benefit greatly from such employment in certain positions.
Texas has also requested thut this Court enjoin the EEOC from issuing right-to-sue letters in relation to the denial ofemployment opportunities based on the criminal history ofthe job applicant. The Court declines to oijoin the EEOC from is~uing right-to-sue letters. As argued by Defendants, the issuance ofa right-to-sue letter is not a determination by the EEOC that a meritorious claim exists. See 42 U.S.C. § 2000e-5(f)(l ).
Accordingly, Texas's Motion for Sununary Judgment is DENIED in pa1't as to Count I and Defendants' Motion for Summary Judgment is GRANTED In part as to Count I. Texas's request for a declaratory judgment and injunction under 28 U.S.C. §§ 2201-02 is DlSI.VllSSED.
M. to the first prong ofTexas's APA claim, the Court holds that the Guidance described above is a substantive mle issued without notice and the opportunity fur comment. The Court declines to make the findings requested by Texas in the seoond and third pl'Ongs ofCount II, as
3

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such findings are not necessary to the adjudication ofthe claims and would be premature at this

time. Accordingly, Texas's Motion for Summary Judgment is GRANTED in part as to the first

prong of Count II but DENIED in part as to the second and third prongs of Count II;

Defendants' Motion for Summary Judgment is similarly DENIED in part and GRANTED in

part as to Count II. Defendants EEOC and the Attorney General ofthe United States (in any

enforcement action against the State ofTexas) are ENJOINED from enforcing the EEOC's

interpretation ofthe Guidance against the State of Texas until the EEOC has complied with the

notice and comment requirements under the APA for promulgating an enforceable substantive

rule. Texas's remaining requests for declaratory and injunctive relief are DISMISSED.

so ORDERED this

/

;;4-
"'

day ofFebru~

018.

4

 
 Case: 18-10638 Document: 00515137429 Page: 1 Date Filed: 09/30/2019 Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 1 of 27 PageID 2552

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS,

No. 18-10638

United States Court of Appeals Fifth Circuit
FILED
August 6, 2019
Lyle W. Cayce Clerk

Plaintiff–Appellee Cross–Appellant,

versus

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JANET DHILLON, in her official capacity as Acting Chair of the EEOC; WILLIAM P. BARR, U.S. ATTORNEY GENERAL, in his official capacity as Attorney General for the United States,

Defendants–Appellants Cross–Appellees.

Appeals from the United States District Court for the Northern District of Texas

Before SMITH, WIENER, and ELROD, Circuit Judges. JERRY E. SMITH, Circuit Judge:
Texas sued the Equal Employment Opportunity Commission (“EEOC”) and the Attorney General (“Defendants”), challenging EEOC’s guidance on employers’ use of criminal records in hiring. Texas alleged that guidance

Case: 18-10638 Document: 00515137429 Page: 2 Date Filed: 09/30/2019 Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 2 of 27 PageID 2553
No. 18-10638 constituted an unlawfully promulgated substantive rule and sought to enjoin its enforcement. The state also asked for a declaration per the Declaratory Judgment Act (“DJA”) that it could lawfully exclude felons from state employment. The district court dismissed for want of jurisdiction, but a different panel of this court reversed. Texas v. EEOC (Texas I), 827 F.3d 372 (5th Cir. 2016). That panel, however, withdrew its opinion and remanded so the district court could apply United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), in the first instance. Texas v. EEOC (Texas II), 838 F.3d 511 (5th Cir. 2016) (per curiam).
On remand, considering cross-motions for summary judgment, the district court dismissed Texas’s DJA claim but enjoined defendants from enforcing EEOC’s guidance against Texas until EEOC complies with the notice-andcomment rulemaking requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. We modify the injunction and affirm it as modified.
I. A. In April 2012, EEOC issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” (“the Guidance”).1 Citing data suggesting that blanket bans on hiring individuals with criminal records disproportionately impact minorities, the Guidance declares, With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not
1 U.S. EQUAL EMP’T OPPORTUNITY COMM’N, 915.002, CONSIDERATION OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (2012) [hereinafter Guidance].
2

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No. 18-10638 demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity. Guidance at 9. The Guidance also describes how EEOC will assess whether considering criminal records in hiring decisions has a disparate impact on protected groups. Notably, the Guidance concludes that “[n]ational data . . . supports a finding that criminal record exclusions have a disparate impact based on race and national origin [and] provides a basis for the Commission to further investigate such Title VII disparate impact charges.” Id. at 10.
The Guidance details how an employer may show that its policy is jobrelated and consistent with business necessity and thus may defend against a charge that its criminal-record policy gives rise to disparate impact liability under Title VII. The Guidance provides that “[a]n employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact.” Id. Instead, an employer “needs to show that [its criminal-record hiring] policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” Id. at 14.
The Guidance presents “[t]wo circumstances in which [EEOC] believes employers will consistently meet the ‘job related and consistent with business necessity’ defense”: (1) by establishing a validated, multi-factor screening system per the Uniform Guidelines on Employee Selection Procedures standards or (2) by “develop[ing] a targeted screen . . . and then provid[ing] an opportunity for an individualized assessment for people excluded by the screen.” Id. (emphasis added). Significantly, the Guidance condemns any “policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities” because it “does not focus on the dangers of particular crimes and the risks in particular positions.” Id. at 16.2
2 The Guidance approvingly cites Green v. Missouri Pacific Railroad, 523 F.2d 1290,
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“All entities covered by Title VII are subject to [the Guidance’s] analysis,” id. at 27 n.2—including “state[] and local governments,” id. at 3. The Guidance was “issued as a part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.” Id. (emphasis added).3 And the Guidance stresses that it should be followed by “employers considering the use of criminal records in their selection and retention processes”; “individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records”; and “EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.” Id.4
Although the scope of the Guidance is purportedly broad, EEOC has limited rulemaking and enforcement power with respect to Title VII. It may issue only “procedural regulations” implementing Title VII and may not promulgate substantive rules. See 42 U.S.C. § 2000e-12(a); see also EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991). And despite that EEOC can
1298 (8th Cir. 1975), which observed that the court could not “conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.”
3 States were a particular focus of the Guidance, as indicated by a letter from Attorney General Holder to all state attorneys general. Portions of that letter are recorded in the Guidance. See Guidance at 51 n.165 (“In April 2011, Attorney General Holder sent a letter to every state Attorney General, with a copy to every Governor, asking them to ‘evaluate the collateral consequences’ of criminal convictions in their state, such as employment-related restrictions on ex-offenders, and ‘to determine whether those [consequences] that impose burdens on individuals . . . without increasing public safety should be eliminated.’” (alteration in original, quoting Letter from Eric H. Holder, Jr., Att’y Gen., Dep’t of Justice, to State Attorneys General and Governors (April 18, 2011), https://csgjusticecenter.org/wpcontent/uploads/2014/02/Reentry_Council_AG_Letter.pdf (last visited July 22, 2019))).
4 “[T]he Guidance here provides an analytical framework that applies across the board to all employers—including the hundreds of state agencies at issue in this suit, which employ hundreds of thousands of employees—and binds EEOC staff in later actions.” Texas I, 827 F.3d at 384–85.
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No. 18-10638 bring civil enforcement proceedings against private employers for violating Title VII, it may only investigate state employers.5 The Attorney General is the only federal government entity or person who may directly sue state employers to enforce Title VII. Both EEOC and the Attorney General, however, may issue aggrieved individuals “right-to-sue” letters, allowing those persons to sue a state employer for violating Title VII. See 42 U.S.C. §§ 2000e-5(f), 2000e-6.
B. By state law and the policies of individual state agencies, Texas has long excluded persons with felony convictions—or at least those convicted of specified categories of felonies—from many public jobs. The Texas Department of Public Safety and the Texas Department of Aging and Disability Services, for instance, categorically exclude all convicted felons from employment. Texas schools and the Texas Juvenile Justice Department, moreover, categorically exclude applicants convicted of specified felonies.
Soon after EEOC issued the Guidance, Texas received notice that an individual who had been rejected for a Department of Public Safety job had filed a complaint with EEOC, challenging Texas’s no-felon hiring policy as having a disparate impact in violation of Title VII. Texas, in turn, sued EEOC and the Attorney General, contending that “EEOC’s rule purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment.” Texas averred that it had to choose either to “violate state and local laws that prohibit the ‘individualized assessments’ that EEOC requires
5 Though the Attorney General may bring an individual claim of discrimination against a state only if EEOC has investigated the claim, found it meritorious, and referred it to the Department of Justice (“DOJ”), the Attorney General may file a pattern-or-practice claim against a state without a referral from EEOC. See 42 U.S.C. §§ 2000e-5(f)(1), 2000e-6(a).
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No. 18-10638 and consider convicted felons for hire as Troopers, jailers, and school teachers—or [to] . . . ignore the EEOC’s rule and risk an enforcement action.”
Texas brought one claim under the DJA, 28 U.S.C. §§ 2201–2202 (“Count One”), and another under the APA, 5 U.S.C. § 702 (“Count Two”). In Count One, Texas asked for “a declaration of its right to maintain and enforce its laws and policies that absolutely bar convicted felons (or particular categories of convicted felons)” from specified jobs. Texas also asked for an injunction that EEOC and the Attorney General “cannot enforce the interpretation of Title VII that appears in its Felon-Hiring Rule, nor . . . issue right-to-sue letters pursuant to that rule.” In Count Two, Texas urged the court to set aside the Guidance, contending that the Guidance exceeded EEOC’s power under Title VII, was promulgated without notice and comment in violation of the APA, and was substantively unreasonable.
The district court dismissed for want of subject matter jurisdiction, but a divided panel reversed. Texas I, 827 F.3d 372. The panel majority held that Texas had Article III standing to challenge the Guidance, id. at 380, and that the Guidance was a final agency action eligible for judicial review under the APA, id. at 387–88. Judge Higginbotham dissented, contending that the controversy did not satisfy “Article III’s demand of ripeness, injury, and adversarial engagement.” Id. at 388. Judge Higginbotham also maintained that the Guidance was not a final agency action. Id.
The panel withdrew its opinion, vacated the judgment, and remanded. Though the Supreme Court had announced Hawkes before the panel issued Texas I—and the panel applied Hawkes in Texas I—the district court had not had a chance to apply Hawkes in the first instance. Texas II, 838 F.3d 511. Noting that this court had remanded another case “relat[ing] closely to the
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No. 18-10638 issue that the Supreme Court decided in Hawkes,” the panel did the same. Id.6
On remand, the district court denied Defendants’ renewed motion to dismiss for lack of jurisdiction, largely adopting the reasoning in Texas I. Following cross-motions for summary judgment, the court dismissed Texas’s DJA claim, “declin[ing] to declare that Texas has a right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories of convicted felons) from serving in any job the State and its Legislature deems appropriate.” The court also “decline[d] to enjoin the EEOC from issuing rightto-sue letters.”
Regarding the APA claim, the district court granted Texas’s motion for summary judgment in part and denied Defendants’ motion. The court held “that the Guidance . . . is a substantive rule issued without notice and the opportunity for comment.” The court thus enjoined EEOC and the Attorney General “from enforcing the EEOC’s interpretation of the Guidance against the State of Texas until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.” The court did not reach the questions whether EEOC has the power to promulgate a substantive rule interpreting Title VII or whether the Guidance was substantively unreasonable.7 EEOC appealed, and Texas cross-appealed.
6 The other case, Belle Co. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), differed significantly from this one. It involved the same question raised in Hawkes: Whether the Army Corps of Engineers’s jurisdictional determinations made under the Clean Water Act were final agency actions. This court held that they were not, but the Supreme Court held the opposite in Hawkes, then granted certiorari in Belle, vacated, and remanded. Kent Recycling Servs., LLC v. U.S. Army Corps of Eng’rs, 136 S. Ct. 2427 (2016) (mem.).
7 The district court denied Defendants’ motion to alter or amend the judgment and for clarification under Federal Rule of Civil Procedure 59(e).
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No. 18-10638 II.
First we must decide two jurisdictional issues: Whether the Guidance is a final agency action that we may review8 and whether Texas has standing to challenge the Guidance. We review de novo whether the district court had jurisdiction.9 We begin with whether the Guidance is a reviewable final agency action because that analysis contextualizes the standing inquiry. The APA allows judicial review only of a “final agency action,”10 meaning an action that (1) “mark[s] the consummation of the agency’s decisionmaking process” and (2) “by which rights or obligations have been determined, or from which legal consequences will flow.”11 The Supreme Court has “long taken” a “‘pragmatic’ approach . . . to finality,”12 viewing “the APA’s finality requirement as ‘flexible.’”13
Defendants do not dispute that the Guidance is “the consummation of [EEOC’s] decisionmaking process.” Bennett, 520 U.S. at 178 (internal quotation marks and citation omitted). Reviewability vel non of the Guidance thus turns on the second Bennett prong—whether “rights or obligations have been determined” by it, or whether “legal consequences will flow” from it. Id.
8 In this circuit, whether an agency action is final is a jurisdictional issue, not a merits question. Peoples Nat’l Bank v. Office of the Comptroller of the Currency of the U.S., 362 F.3d 333, 336 (5th Cir. 2004) (“If there is no ‘final agency action,’ a federal court lacks subject matter jurisdiction.” (quoting Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999))).
9 Id. 10 5 U.S.C. § 704. 11 Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quote at 178) (internal quotation marks and citations omitted); see also Luminant Generation Co. v. U.S. EPA, 757 F.3d 439, 441 (5th Cir. 2014). 12 Hawkes, 136 S. Ct. at 1815 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). 13 Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (quoting Abbott, 387 U.S. at 150)
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(citation omitted).

No. 18-10638

A. Courts consistently hold that an agency’s guidance documents binding it and its staff to a legal position produce legal consequences or determine rights and obligations, thus meeting the second prong of Bennett. “The primary distinction between a substantive rule”—which is, by definition, a final agency action14—“and a general statement of policy . . . turns on whether an agency intends to bind itself to a particular legal position.”15
Whether an action binds the agency is evident “if it either appears on its face to be binding[] or is applied by the agency in a way that indicates it is binding.”16 Courts have looked for mandatory language to determine whether an agency’s action binds it and accordingly gives rise to legal consequences. In some cases, “the mandatory language of a document alone can be sufficient to render it binding.”17
Similarly, actions that retract an agency’s discretion to adopt a different view of the law are binding. “[I]f a statement denies the [agency] discretion in

14 See Cohen v. United States, 578 F.3d 1, 6 (D.C. Cir. 2009) (“A substantive rule constitutes a binding final agency action and is reviewable.” (citing 5 U.S.C. § 704)), vacated in part on other grounds, 650 F.3d 717 (D.C. Cir. 2011) (en banc).
15 Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (emphasis added); see also U.S. Tel. Ass’n v. FCC, 28 F.3d 1232, 1234 (D.C. Cir. 1994) (“The distinction between [policy statements and substantive rules] turns on an agency’s intention to bind itself to a particular legal position.”).
16 Texas v. United States, 809 F.3d 134, 171 (5th Cir. 2015) (citation omitted), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (mem.); see also Hawkes, 136 S. Ct. at 1814 (finding agency actions committing the agency to a determination about the scope of its jurisdiction to “give[] rise to direct and appreciable legal consequences, thereby satisfying the second prong of Bennett” (internal quotation marks and citation omitted)).
17 Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002); see also Iowa League of Cities v. EPA, 711 F.3d 844, 846 (8th Cir. 2013) (holding that language expressing an agency’s position that speaks in mandatory terms is “the type of language we have viewed as binding” (internal quotation marks and citation omitted)).
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No. 18-10638 the area of its coverage[,] then the statement is binding, and creates rights or obligations.” Texas, 809 F.3d at 171 (alterations omitted) (quoting Gen. Elec., 290 F.3d at 382). Put differently, “where agency action withdraws an entity’s previously-held discretion, that action alters the legal regime, binds the entity, and thus qualifies as final agency action.”18 That withdrawal of discretion distinguishes a policy statement—which leaves the agency “the discretion and the authority to change its position . . . in any specific case” and “does not seek to impose or elaborate or interpret a legal norm”—from a final agency action. Synchor, 127 F.3d at 94.
Another indication that an agency’s action binds it and thus has legal consequences or determines rights and obligations is whether the document creates safe harbors protecting private parties from adverse action. “When the language of the [agency] document is such that private parties can rely on it as a norm or safe harbor by which to shape their actions, it can be binding as a practical matter.” Cohen, 578 F.3d at 9 (internal quotation marks and citation omitted). Hawkes is illustrative. There, the Court held that jurisdictional determinations (“JDs”) made by the U.S. Army Corps of Engineers regarding the applicability of the Clean Water Act (“CWA”) to different tracts of land were final agency actions. The Court noted that when the Corps issued a “negative” JD, the landowner was assured that he would be free from CWA enforcement actions for five years. Hawkes, 136 S. Ct. at 1814. But if the Corps found that a tract was subject to the CWA—and thereby issued an
18 Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d 42, 56 (D.C. Cir. 2016) (cleaned up) (quoting NRDC v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011)); see also Cohen, 578 F.3d at 7 (“inquir[ing] whether the language and the content of the [agency action] bound the [agency] or genuinely left the agency and its decisionmakers free to exercise discretion” (cleaned up)); McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1322 (D.C. Cir. 1988) (finding an agency action to be a legislative rule and not a policy statement because “it substantially curtail[ed] EPA’s discretion in [deciding what waste was subject to regulation] and accordingly has present binding effect”).
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“affirmative JD”—the landowner would be denied the benefits of a negative JD. In other words, the issuance of JDs produced “legal consequences,” giving plaintiffs a safe harbor or not.
That the agency’s action binds its staff or creates safe harbors demonstrates that legal consequences flow from it, even when the agency lacks authority to promulgate substantive regulations implementing the statute it administers. What matters is whether the document “ha[s] practical binding effect” such that “affected private parties are reasonably led to believe that failure to conform will bring adverse consequences.” Gen. Elec., 290 F.3d at 383 (internal quotation marks and citation omitted).19
B. Defendants do not dispute that the Guidance binds EEOC, and for good reason. The Guidance indicates that it binds EEOC staff to an analytical method in conducting Title VII investigations and directs their decisions about which employers to refer for enforcement actions. It also limits discretion respecting the use of certain evidence, mandating that evidence of a racially-
19 Defendants propound the opposite—that when, as here, an agency does not have authority to issue binding interpretations of the statute it administers, any guidance it issues on the interpretation of that statute does not have legal consequences. See Appellants’ Br. 30 (citing Luminant, 757 F.3d at 442 & n.7; Am. Tort Reform Ass’n v. OSHA, 738 F.3d 387, 404– 05 (D.C. Cir. 2013); Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 313 F.3d 852, 858– 59 (4th Cir. 2002)). That position cannot be squared with AT&T Co. v. EEOC, 270 F.3d 973 (D.C. Cir. 2001), which recognized the possibility that EEOC can take final agency action within the meaning of Bennett. See id. at 976 (observing that final agency action includes “taking a legal position . . . [that] forces a party to change its behavior” or that otherwise “affect[s] the regulated community”). And, in any event, none of the cases Defendants muster involves an agency action binding agency staff. See Luminant, 757 F.3d at 442 (observing that the contested “notice[s] do[] not commit the EPA to any particular course of action”); Am. Tort Reform, 738 F.3d at 395–96 (noting that the agency did not intend its challenged statement to bind agency staff); Flue-Cured, 313 F.3d at 859 (describing the contested action “as a research publication . . . carr[ying] no legally binding authority”). Defendants identify no case holding that an agency action binding its staff is not a final agency action.
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No. 18-10638 balanced workforce cannot overcome a showing of disparate impact. And by broadly condemning “[a] policy or practice requiring an automatic, across-theboard exclusion from all employment opportunities,” Guidance at 16, the Guidance leaves no room for EEOC staff not to issue referrals to the Attorney General when an employer uses a categorical felon-hiring ban.
Those characteristics are comparable to the ones in Natural Resources Defense Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011). There, the court held that an EPA guidance was a final agency action because it withdrew agency employees’ discretion to refuse to find state emission-control plans non-compliant with EPA air quality standards on particular grounds. Id. at 319–20. The Guidance here similarly tells EEOC staff that across-the-board limitations are unlawful and forbids staff from considering certain evidence—that of a balanced workforce—when deciding whether an employer has satisfied Title VII’s requirements.
The Guidance also prescribes a multi-factor framework for employers to use in designing “targeted exclusion” policies that agency personnel must presumptively follow in determining whether an employer’s felon-hiring policy violates Title VII. Guidance at 14, 17–18. That corresponds to Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000), holding that a guidance document requiring agency staff to use a multi-factor analysis in deciding whether a regulated entity’s activity complied with governing law was a final agency action.
The Guidance, moreover, tells employers how to avoid Title VII disparate-impact liability. It describes “[t]wo circumstances in which the Commission believes employers will consistently meet the ‘job related and consistent with business necessity’ defense.” Guidance at 14. Those “safe harbors” are, admittedly, not so definite as is the effect of JDs in Hawkes, nor are the
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No. 18-10638 consequences of failing to abide by the Guidance as severe as the penalties threatened in Hawkes. But viewing the finality of the Guidance flexibly and pragmatically, as we are bound to do, the Guidance affects “the field of potential plaintiffs” in a way that carries legal consequences and dictates employers’ rights and obligations. Hawkes, 136 S. Ct. at 1814. The Guidance is “binding as a practical matter” because “private parties can rely on it as a norm or safe harbor by which to shape their actions.” Cohen, 578 F.3d at 9 (citation omitted). In fact, the Guidance explicitly declares that it is intended to be a playbook for employers to use to avoid liability, and it describes “best practices” for employers. Guidance at 3; see id. at 25 (listing “Employer Best Practices”). Further, it is supposed to be used by “individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records,” id. at 3, thus opening the “field of potential plaintiffs,” Hawkes, 136 S. Ct. at 1814.
C. Conceding that the Guidance binds EEOC, Defendants, for three reasons, insist that legal consequences do not flow from it. First, they posit that because EEOC has no power to bring a Title VII enforcement action against Texas, its Guidance has no legal consequences for the state. EEOC emphasizes that the Guidance “applies solely to how the EEOC conducts a preliminary, non-final step in the administrative process,” i.e., how it investigates a charge of discrimination and decides whether to issue a right-to-sue letter. EEOC staff have no “authority to impose penalties [on Texas] for non-compliance with its provisions or applicable provisions of Title VII.”
That theory makes the Guidance’s finality dependent on plaintiff’s identity. EEOC’s position allows the Guidance to constitute final agency action if the plaintiff is a private employer against which EEOC can bring an
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enforcement action, but non-final if the plaintiff is a public employer. Finality, however, cannot vary depending on who sued the agency; it depends on the rule itself.20 That argument, furthermore, is hard to reconcile with Hawkes, which teaches that legal consequences may flow from an agency action even if “no administrative or criminal proceeding can be brought for failure to conform” to the action. Hawkes, 136 S. Ct. at 1815.
The decision in Frozen Food Express v. United States, 351 U.S. 40 (1956), likewise undermines Defendants’ contention that, because EEOC lacks enforcement authority over Texas, the Guidance is not final agency action. In Frozen Food Express, the Interstate Commerce Commission issued an order that listed commodities it considered statutorily exempt from regulation. Id. at 42. “Although the order ‘had no authority except to give notice of how the Commission interpreted’ the relevant statute, and ‘would have effect only if and when a particular action was brought against a particular carrier,’ [the Supreme Court] held that the order was . . . immediately reviewable.” Hawkes, 136 S. Ct. at 1815 (internal citation omitted) (first quoting Abbott, 387 U.S. at 150, then citing Frozen Food Express, 351 U.S. at 44–45). The order, moreover, warned carriers that they risked civil and criminal penalties by transporting the non-exempt commodities, thus indicating that the order was a reviewable agency action. Frozen Food Express, 251 U.S. at 44.21
20 Cf. Texas I, 827 F.3d at 382 (“Holding that the Guidance is not ‘final agency action’ simply because the EEOC cannot bring an enforcement action against Texas directly would stand for the proposition that whether a blanket agency rule is ‘final agency action’ turns on the identity of the class of plaintiffs, instead of the nature, character, and effect of the rule in and of itself.”). EEOC relatedly insists that, even though the Guidance binds EEOC, it does not bind DOJ. That assertion does not change what is important for the finality analysis: The Guidance binds the agency that promulgated it to a particular course of action when faced with a criminal-record hiring policy.
21 Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000), stands for a similar proposition. That court found that when an agency expressed a legal position that bound regulated entities—and required them to follow increased reporting obligations or risk
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Invoking Luminant, 757 F.3d at 442, Defendants secondly object that any legal consequences flow from Title VII, not the Guidance, because the Guidance’s interpretation of Title VII disparate impact liability has force of law only if a court presiding over an enforcement action agrees with the Guidance. Defendants reason that whatever consequences flow from the Guidance itself—namely, that Texas state agencies might have to change their felon-hiring policies to avoid liability—are practical, not legal, consequences.22
But as we have explained, whether the agency action binds the agency indicates whether legal consequences flow from that action. Moreover, Luminant is distinguishable. There we held that the Clean Water Act—not the EPA’s notices of violation to the plaintiff energy companies—set forth the plaintiffs’ rights and obligations. Luminant, 757 F.3d at 442. Put differently, the EPA notices “merely expressed the agency’s opinion about the legality of the plaintiff’s conduct; it did not . . . commit the administrative agency to a specific course of action should the plaintiff fail to comply with the agency’s view.” Texas I, 827 F.3d at 384 (discussing Luminant).23 Here, the Guidance dictates how EEOC must assess claims of Title VII disparate-impact liability targeting employers with felon-hiring policies. The Guidance does not merely comment
enforcement actions—the agency action was one from which “legal consequences” flowed, even though no enforcement action had been filed against the plaintiff. Id. at 48–49.
22 Defendants cite Louisiana State v. United States Army Corps of Engineers, 834 F.3d 574 (5th Cir. 2016), contending that an agency action that produces only practical consequences is not a final agency action. But Louisiana State does not compel a finding that the Guidance is not final agency action. To the contrary, in Louisiana State, we repeatedly cited Texas I’s decision—that the Guidance is a reviewable final agency action—to support our conclusion that the Louisiana State agency action was not. See Louisiana State, 834 F.3d at 581–83.
23 The D.C. Circuit has similarly distinguished between agency guidance “affect[ing] the regulated community,” which that court suggested would constitute final agency action, and statements directed at an individual entity “expressing [the agency’s] view of the law” with respect to that entity. AT&T, 270 F.3d at 976 (citing Appalachian Power, 208 F.3d at 1022).
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No. 18-10638 on a single employer’s practices; it tells EEOC staff and all employers what sort of policy is unlawful.
Defendants thirdly insist that the Guidance’s alleged safe harbors are not safe at all, observing that the Guidance equivocally “states only that the Commission ‘believes’ that certain practices will ‘consistently’ meet statutory requirements.” Defendants maintain, moreover, that the Guidance does not— and could not—“create a safe harbor guaranteeing that the Attorney General will not sue an employer.”
That is true, but, as discussed above, whether the Guidance is final agency action does not hinge on whether a private or public employer challenges it. Such an approach would flout the Supreme Court’s repeated instruction to approach finality flexibly and pragmatically. See Abbott Labs., 387 U.S. at 149; Qureshi, 663 F.3d at 781. The Guidance purports to bind EEOC staff when conducting investigations. It instructs staff that if employers use one of the two stipulated methods for assessing applicants, they will have demonstrated that their exclusion is job-related and consistent with business necessity. The Guidance accordingly establishes safe harbors, thereby producing legal consequences and determining rights and obligations of regulated parties.
In sum, the Guidance “has the effect of committing the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.” Texas I, 827 F.3d at 383. Legal consequences thus flow from the Guidance, and it determines rights and obligations. The Guidance accordingly satisfies the second prong of Bennett and is a final agency action that we have jurisdiction to review.
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No. 18-10638 III.
We also must decide whether Texas has standing to sue EEOC and the Attorney General to challenge the legality of the Guidance. As the party invoking federal jurisdiction, Texas must establish Article III standing by showing that it has suffered “an injury that is ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Texas, 809 F.3d at 150 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). “[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lewis v. Casey, 518 U.S. 343, 358 (1996) (first alteration added) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). “In response to a summary judgment motion,” therefore, the plaintiff “must set forth by affidavit or other evidence specific facts, which for purposes of the . . . motion will be taken to be true.” Id. (quoting Defs. of Wildlife, 504 U.S. at 561). We “review[] questions of standing de novo.” McKinley v. Abbott, 643 F.3d 403, 406 (5th Cir. 2011) (citation omitted).
A. 1. Because it is the object of the Guidance and has suffered multiple injuries as a result, Texas has constitutional standing. If, in a suit “challenging the legality of government action,” “the plaintiff is himself an object of the action . . . there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.”24 “Whether someone is in fact an object of a regulation is a flexible inquiry
24 Defs. of Wildlife, 504 U.S. at 561–62; see also Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 264 (5th Cir. 2015).
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No. 18-10638 rooted in common sense.” Contender Farms, 779 F.3d at 265.
That common-sense inquiry is easy here. The Guidance explicitly states that it applies to state employers and “[wa]s issued as part of [EEOC’s] efforts to eliminate unlawful discrimination in employment screening . . . by entities covered by Title VII,” including state employers. Guidance at 3. Thus, by its own terms, the Guidance covers Texas.
Texas suffers at least two injuries as an object of the Guidance. “An increased regulatory burden typically satisfies the injury in fact requirement.” Contender Farms, 779 F.3d at 266. Additionally, “being pressured to change state law constitutes an injury,” because “states have a sovereign interest in the power to create and enforce a legal code.” Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015) (cleaned up).25
The Guidance does both. It deems unlawful the hiring practices of multiple Texas agencies by rejecting across-the-board felon hiring screens. Guidance at 16. And it warns the state that the state will “consistently” be able to show that its current policies for hiring police officers, game wardens, school teachers, and youth corrections offers are lawful under Title VII only if it abandons those policies and adopts one of two procedures authorized by the Guidance. See id. at 14. Because the Guidance tells EEOC staff to treat it as binding in its investigations, id. at 3, Texas faces the possibility of investigation by EEOC and referral to the Attorney General for enforcement proceedings if it fails to align its laws and policies with the Guidance.26 In sum, Texas
25 Our decision in Texas, 809 F.3d at 155, acknowledges that “pressure to change state law may not be enough—by itself—in [some] situations.” But the sort of “direct, substantial pressure directed at the states” in that case is also present here. Id. at 154.
26 One Texas agency has already been required to respond to a charge of discrimination filed with EEOC based on its no-felon hiring policy. See Notice of Charge of Discrimination from Julia Way, Intake Supervisor, EEOC, to Stuart Platt, Gen Counsel, Tex. Dep’t
18

Case: 18-10638 Document: 00515137429 Page: 19 Date Filed: 09/30/2019 Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 19 of 27 PageID 2570
No. 18-10638 has opted to express certain values by excluding felons from many positions of public employment, and the Guidance imposes a regulatory burden on Texas to comply with the Guidance to avoid enforcement actions and, consequently, pressures it to abandon its laws and policies.
2. Beyond those injuries, Texas has adequately established that it suffered a procedural injury jeopardizing its concrete interests. A plaintiff can show a cognizable injury if it has been deprived of “a procedural right to protect [its] concrete interests.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (emphasis omitted). A violation of the APA’s notice-and-comment requirements is one example of a deprivation of a procedural right. See Sierra Club v. EPA, 699 F.3d 530, 533 (D.C. Cir. 2012). The redressability requirement is lighter when the plaintiff asserts deprivation of a procedural right. “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Texas, 809 F.3d at 150–51 (quoting Massachusetts v. EPA, 549 U.S. 497, 518 (2007)).
We assume, for purposes of the standing analysis, that Texas is correct on the merits of its claim that the Guidance was promulgated in violation of the APA. See Sierra Club, 699 F.3d at 533. And that violation undercuts Texas’s concrete interest, as a sovereign state, in maintaining compliance with its laws. Texas, 787 F.3d at 749. The Guidance warns employers that they may not defend a felon-exclusion policy on the ground that it was adopted to comply with a state or local law or regulation.27 The Guidance consequently
Pub. Safety (Nov. 1, 2013). 27 Guidance at 24. The Guidance gives the example that even if a “state . . . imposes
19

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Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 20 of 27 PageID 2571
No. 18-10638 encourages employers, to avoid liability, to deviate from state law when it conflicts with the Guidance.
3. Defendants respond on two fronts. First, they revert to their objection that the Guidance is not a final agency action, so Texas cannot show that it is an object of such an action. We already have rejected that contention, which, in any event, erroneously conflates the finality analysis with standing.28
Second, Defendants maintain that Texas cannot show an immediate injury because “the Guidance does not compel Texas to do anything.” But it would strain credulity to find that an agency action targeting current “unlawful” discrimination among state employers—and declaring presumptively unlawful the very hiring practices employed by state agencies—does not require action immediately enough to constitute an injury-in-fact.29
B.
Texas’s injuries are fairly traceable to EEOC’s promulgation of the Guidance. The Guidance, not Title VII, condemns Texas’s felon-hiring policies, and
criminal record restrictions on school employees,” a preschool that has a felon-exclusion policy would be subject, at minimum, to investigation for refusing to hire someone who has felony sex offense for a position to help with children. See id.
28 See Bennett, 520 U.S. at 177–78 (treating constitutional standing and finality as distinct inquiries).
29 See Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009) (finding it “more than a little ironic that [the agency] would suggest [the plaintiff] lack[s] standing and then, later in the same brief, label [the plaintiff] as a prime example of . . . the very problem the Rule was intended to address” (alterations and citation omitted)); see also Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580, 586 (7th Cir. 2011) (responding to agency’s contention that injury from a rule was speculative because no enforcement action was pending, finding it “odd that the Agency is arguing that it must have a strict rule now to get [its objects] to be more compliant with [the agency’s] rules, but at the same time it is asserting that these rules are not meant to change anyone’s immediate behavior enough to confer standing to challenge that regulation”).
20

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No. 18-10638 it, not Title VII, pressures Texas to change its laws and policies or risk referral to the Attorney General by EEOC.30
Texas’s injuries are likewise traceable to the Attorney General. On remand, Defendants began distinguishing between Texas’s alleged lack of standing to sue the Attorney General, and any standing to sue EEOC. Defendants now stress that the Attorney General is not bound to enforce the Guidance, and, moreover, DOJ currently eschews EEOC’s approach to Title VII disparate-impact claims “in numerous respects.” Defendants also allege that current DOJ policy bars it from enforcing the Guidance. They conclude that “there is no material probability that the [Attorney General] would seek to enforce the Guidance at all” and that Texas, accordingly, has failed to show an injury-in-fact fairly traceable to the Attorney General.
We disagree. Defendants miss the mark by focusing on DOJ’s current litigation position. “In identifying an injury that confers standing, courts look exclusively to the time of filing.”31 Thus, that DOJ recently changed its position and no longer shares the Guidance’s views on disparate-impact liability and criminal-record hiring policies does not impact our standing analysis. We focus, instead, “on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. FEC, 554 U.S. 724, 734 (2008).
With the proper time frame in view, we have no trouble concluding that
30 See United States v. Johnson, 632 F.3d 912, 921 (5th Cir. 2011) (holding “that [the plaintiff’s] standing to contest the rulemaking requires that the [enabling] statute on its face did not order [the plaintiff] to comply with the [rule’s] requirements”).
31 Loa-Herrera v. Trominski, 231 F.3d 984, 987 (5th Cir. 2000); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000) (holding that the plaintiffs had suffered an injury-in-fact when the defendant’s “unlawful conduct . . . was occurring at the time the complaint was filed” and had produced the relevant injuries).
21

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No. 18-10638 Texas’s injuries are fairly traceable to the Attorney General. The pressure on Texas to change its laws exists, in part, because the Attorney General has prosecutorial power to bring enforcement actions against Texas based on EEOC referrals or a pattern-or-practice claim. That was true when Texas filed the suit, and it remains so now. That the Attorney General has not attempted to enforce the Guidance against Texas does not deprive it of standing.32
Finally, Texas’s injuries would be redressed by a favorable ruling. An injunction forbidding EEOC and the Attorney General from enforcing the Guidance would safeguard Texas’s sovereign interests.
C. Although standing is assessed as of the date on which suit was filed, courts may not decide cases that since have become moot because there is no longer a live case or controversy. See, e.g., U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). Thus, even though Defendants do not raise the possibility that Texas’s claims against the Attorney General are moot considering DOJ’s new position, we must ponder that circumstance.
A case does not necessarily become moot when a defendant voluntarily ceases the objectionable conduct. United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.”). That is because “[t]he defendant is free to return to his old ways.” Id. But a “case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.” Id. at 633 (internal quotation marks and citation omitted). “The
32 See Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (refusing to “find a lack of standing simply because an agency has refused to enforce its own regulations”).
22

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Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 23 of 27 PageID 2574
No. 18-10638 burden is a heavy one.” Id. The defendant must show that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”33
Defendants have not carried that heavy burden. There is no direct evidence that the Attorney General has committed not to honor referrals from EEOC based on the Guidance or that Texas otherwise cannot reasonably expect its injury to recur. The only indication that the Attorney General will not follow the Guidance is a general memorandum from the Associate Attorney General to the Heads of Civil Litigating Components and United States Attorneys dated January 25, 2018, which instructs that “effective immediately for [Affirmative Civil Enforcement] cases, the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.”34 That broad memorandum does not “ma[k]e it absolutely clear that the allegedly wrongful behavior [can]not reasonably be expected to recur.” McKinley, 643 F.3d at 406 (citation omitted). And even if it did, Defendants— the Attorney General included—endorsed parts of the Guidance on remand, acknowledging that, to avoid liability, employers must meet one of the two safe harbors in the Guidance and that “the Guidance is fairly encompassed by Title VII.”35
To summarize, Texas has suffered cognizable injuries that are fairly
33 McKinley, 643 F.3d at 406 (quoting Friends of the Earth, 528 U.S. at 189); see id. at 406–07 (dismissing as moot a challenge to a portion of a statute that a district court had declared unconstitutional almost two decades earlier because the governor and relevant county officials had promised that they would not defy the prior court by attempting to enforce the relevant statutory provisions).
34 Memorandum from the Assoc. Att’y Gen. to Heads of Civil Litigating Components & United States Attorneys 2 (Jan. 25, 2018), https://www.justice.gov/file/1028756/download (last visited July 18, 2019).
35 Defs.’ Mem. Supp. Summ. J. 31, 37 (quote at 31) (internal quotation marks and citation omitted).
23

Case: 18-10638 Document: 00515137429 Page: 24 Date Filed: 09/30/2019 Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 24 of 27 PageID 2575
No. 18-10638 traceable to EEOC and the Attorney General. Defendants’ mutual authority to enforce the Guidance are two sides of the same coin. While the Guidance is in place, EEOC pressures Texas to comply with the threat of referral to the Attorney General for further legal action. The Attorney General’s statutory authority to sue Texas is another source of leverage. Both sources would be redressed by a judgment in Texas’s favor. The Attorney General’s recent change of position has not mooted the suit.
IV. Because we have jurisdiction, we turn to the challenges to the scope and phrasing of the injunction. Texas contends that EEOC lacked power to promulgate the Guidance at all. It thus asserts that, instead of barring enforcement until the Guidance goes through notice-and-comment rulemaking, the district court should have enjoined Defendants from treating the Guidance as binding. Defendants, for their part, aver that the injunction is impermissibly vague and overbroad because it fails to specify whether it bars EEOC and the Attorney General from enforcing the Guidance as such or from enforcing the interpretation of Title VII embodied in the Guidance. We review de novo the scope of an injunction. See FDIC v. Faulkner, 991 F.2d 262, 267 (5th Cir. 1993).
A. The district court’s injunction states that Defendants EEOC and the Attorney General of the United States (in any enforcement action against the State of Texas) are ENJOINED from enforcing the EEOC’s interpretation of the Guidance against the State of Texas until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule. Emphasizing that the Guidance is effectively a substantive rule and that EEOC is not authorized to promulgate substantive rules to implement
24

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No. 18-10638 Title VII,36 Texas urges us to find that EEOC lacked power to promulgate the Guidance at all. It therefore asks us to modify the injunction so that it will unconditionally enjoin treatment of the Guidance as binding.37
We agree that the Guidance is a substantive rule subject to the APA’s notice-and-comment requirement and that EEOC thus overstepped its statutory authority in issuing the Guidance. That conclusion follows naturally from our holding that the Guidance is a final agency action. The district court held that the Guidance “is a substantive rule,” but it did not deem it “necessary to the adjudication of the claims” to reach the issue whether EEOC lacked authority to promulgate a substantive rule. The injunction, however, implies the answer, given that it would permit the Guidance to stand if it went through notice-and-comment rulemaking—a process used to promulgate substantive rules.
Because the Guidance is a substantive rule, and the text of Title VII and precedent confirm that EEOC lacks authority to promulgate substantive rules implementing Title VII, we modify the injunction by striking the clause “until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.”
B. Under Federal Rule of Civil Procedure 65(d)(1)(B) and (C), every injunction must “state its terms specifically; and . . . describe in reasonable detail—
36 See 42 U.S.C. § 2000e-12(a); see also Arabian Am. Oil, 499 U.S. at 257. 37 Defendants agree that this would be the correct outcome if we conclude that the Guidance is a substantive rule. See Appellants’ Reply Br. 47 (“But if the Court were to affirm . . . that the Guidance is a substantive rule, then, under that premise, the defendants would not dispute that the EEOC would lack statutory authority to issue the Guidance, and the injunction could be modified to enjoin enforcement of the Guidance per se against Texas without the qualification ‘until the EEOC has complied with the notice and comment requirements under the APA.’” (citations omitted)).
25

Case: 18-10638 Document: 00515137429 Page: 26 Date Filed: 09/30/2019 Case 5:13-cv-00255-C Document 134 Filed 09/30/19 Page 26 of 27 PageID 2577
No. 18-10638 and not by referring to the complaint or other document—the act or acts restrained or required.” “The specificity requirement is not unwieldy. An injunction must simply be framed so that those enjoined will know what conduct the court has prohibited.” Meyer v. Brown & Root Constr. Co., 661 F.3d 369, 373 (5th Cir. Nov. 1981); accord Scott v. Schedler, 826 F.3d 207, 213 (5th Cir. 2016) (per curiam).
Defendants contend that the injunction equivocates whether “the EEOC and Attorney General are barred from enforcing the Guidance as such[] or are barred from enforcing an interpretation of Title VII that is embodied in the Guidance.” But Defendants also suggest that the meaning is evident from the context of the suit, noting that the only interpretation of the injunction’s scope consistent with the district court’s ruling against EEOC on procedural grounds is that the injunction bars EEOC and the Attorney General from treating the Guidance as binding. Because “[a]n injunction must simply be framed so that those enjoined will know what conduct the court has prohibited,” and Defendants appear to admit that the injunction bears just one construction, the injunction meets the specificity requirement of Rule 65. See id. But to avoid any confusion, we modify the injunction to clarify that EEOC and the Attorney General may not treat the Guidance as binding in any respect.
V. Finally, we consider whether to reach the merits of Texas’s DJA claim. The DJA “confer[s] on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). Ample precedent establishes that we should not exercise our discretion to extend declaratory relief when a challenged law or
26

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No. 18-10638 policy no longer affects the plaintiff.38 Because we affirm the injunction, we decline to consider Texas’s DJA claim. We thus vacate the district court’s ruling on the merits of that claim.
The injunction is AFFIRMED as modified, the district court’s ruling on the merits of Texas’s DJA claim is VACATED, and the DJA claim is DISMISSED. No remand is needed.
38 See, e.g., Golden v. Zwickler, 394 U.S. 103, 108–10 (1969) (refusing to issue a declaratory judgment when there was no longer “substantial controversy, between parties having adverse legal interests, of sufficient immediacy . . . to warrant the issuance of a declaratory judgment,” id. at 108 (citation omitted)); Drayden v. Needville Indep. Sch. Dist., 642 F.2d 129, 133 (5th Cir. Unit A Apr. 1981) (“[D]eclaratory . . . relief granted by a district court regarding the cessation of discriminatory practices” following settlement between local and federal parties “would . . . be . . . redundant and superfluous.”), abrogated on other grounds by Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60 (1992); see also Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 562 (8th Cir. 2009) (vacating as “superfluous” a declaratory judgment where the district court also enjoined the challenged practice).
27

 
 Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 1 of 19
U.S. District Court Northern District of Texas (Lubbock) CIVIL DOCKET FOR CASE #: 5:13−cv−00255−C

CLOSED

State of Texas v. EEOC et al Assigned to: Judge Sam R Cummings Case in other court: USCA − Fifth Circuit, 14−10949
USCA FIFTH CIRCUIT, 18−10638 USCA FIFTH CIRCUIT, 18−10638 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 11/04/2013 Date Terminated: 02/01/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

State of Texas

represented by Kyle Hawkins Office of the Texas Attorney General P.O. Box 12548 (MC 059) Austin, TX 78711−2548 512−936−1700 Fax: 512−474−2697 Email: kyle.hawkins@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Andrew D Leonie Office of Attorney General PO Box 12548 Capitol Station Austin, TX 78711−2548 512−475−3281 Email: andrew.leonie@texasattorneygeneral.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Andrew Stephen Oldham Office of the Attorney General of Texas PO Box 12548 MC: 059 Austin, TX 78711−2548 512/936−1862 Fax: 512/475−2994 Email: andy.oldham@texasattorneygeneral.gov TERMINATED: 10/07/2019 Bar Status: Admitted/In Good Standing

Arthur D'Andrea Office of the Texas Attorney General 209 W 14th Street 7th Floor Austin, TX 78701 512/936−2868 Fax: 512/474−2697 Email: arthur.dandrea@texasattorneygeneral.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Austin Nimocks Office of the Attorney General of Texas 209 West 14th Street 8th Floor Austin, TX 78701 512−936−2902

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 2 of 19
Fax: 512−936−0545 Email: austin.nimocks@oag.texas.gov TERMINATED: 09/19/2018 Bar Status: Admitted/In Good Standing
David Jonathan Hacker Office of the Texas Attorney General 209 W 14th Street PDB Ground Floor Austin, TX 78701 512−936−2330 Fax: 512−935−0545 Email: david.hacker@oag.texas.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Jonathan F Mitchell 106 East Sixth Street Suite 900 Austin, TX 78701 512−686−3940 Fax: 512−686−3941 Email: jonathan@mitchell.law TERMINATED: 01/15/2015 Bar Status: Admitted/In Good Standing
Michael Christopher Toth Office of the Attorney General of Texas 209 W 14th Street 8th Floor Austin, TX 78701 512−936−0631 Fax: 512−936−0545 Email: michael.toth@oag.texas.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Scott A Keller Office of the Attorney General 209 West 14th St. 7th Floor (MC 059) Austin, TX 78701 512−936−1700 Fax: 512−474−2697 Email: scott.keller@texasattorneygeneral.gov TERMINATED: 10/07/2019 Bar Status: Admitted/In Good Standing

V. Defendant EEOC

represented by Justin Michael Sandberg United States Department of Justice Civil Division Federal Programs Branch 1100 L St. NW Room 11004 Washington, DC 20005 202/514−5838 Fax: 202/616−8202 Email: justin.sandberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 3 of 19

Defendant Jacqueline Berrien in her official capacity as Chair of the Equal Employment Opportunity Commission
Defendant Eric H Holder, Jr in his official capacity as Attorney General for the United States
Defendant Victoria Lipnic in her official capacity as Acting Chair of the EEOC
Defendant Jefferson B Sessions, III in his official capacity as Attorney

Brian G Kennedy US Dept of Justice Civil Div − Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202/514−3357 Fax: 202/616−8470 Email: brian.kennedy@usdoj.gov TERMINATED: 05/31/2017 Bar Status: Not Admitted
James Ryan Powers U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Room 11218 Washington, DC 20005 202−353−0543 Email: james.r.powers@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Justin Michael Sandberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian G Kennedy (See above for address) TERMINATED: 05/31/2017 Bar Status: Not Admitted
represented by Justin Michael Sandberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian G Kennedy (See above for address) TERMINATED: 05/31/2017 Bar Status: Not Admitted
represented by James Ryan Powers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Justin Michael Sandberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by James Ryan Powers (See above for address)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 4 of 19

General for the United States

LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Justin Michael Sandberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Intervenor Defendant Texas State Conference of the NAACP

represented by Leah C Aden NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: laden@naacpldf.org TERMINATED: 08/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Coty Montag NAACP Legal Defense and Educational Fund, Inc. 1444 I Street NW 10th Floor Washington, DC 20005 202−682−1300 Fax: 202−682−1312 Email: cmontag@naacpldf.org TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Dana Lossia Levy Ratner 80 Eighth Avenue 8th Floor New York, NY 10011 212−627−8100 Fax: 212−627−8182 Email: dlossia@levyratner.com TERMINATED: 08/23/2017 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Edward B Cloutman , III Cloutman & Cloutman, L.L.P. 3301 Elm Street Dallas, TX 75226−2562 214−939−9222 Fax: 214−939−9229 FAX Email: crawfish11@prodigy.net TERMINATED: 08/23/2017 ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 5 of 19
Elizabeth Lauren Avery National Employment Law Project 2030 Addison Street Suite 310 Berkeley, CA 94704 510−663−5708 Fax: 866−665−5705 Email: bavery@nelp.org TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Nana Wilberforce NAACP Legal Defense and Educational Fund, Inc. 40 Rector St. New York, NY 10006 212−965−2279 Fax: 212−226−7592 Email: nwilberforce@naacpldf.org TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Natasha Merle NAACP Legal Defense and Educational Fund Inc 40 Rector St 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: nmerle@naacpldf.org TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Philip Mychael Hernandez The National Employment Law Project 2030 Addison Street Suite 310 Berkeley, CA 94704 510−982−5924 Email: phernandez@nelp.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Robert H Stroup Levy Ratner PC 80 Eighth Avenue 8th Floor New York, NY 10011 212−627−8100 Fax: 212−627−8182 Email: rstroup@levyratner.com TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Samuel Spital NAACP Legal Defense and Educational Fund Inc 40 Rector St 5th Floor New York, NY 10006

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 6 of 19

Intervenor Defendant Beverly Harrison

212−965−2200 Fax: 212−226−7592 Email: sspital@naacpldf.org TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
represented by Leah C Aden (See above for address) TERMINATED: 08/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Coty Montag (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Dana Lossia (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Edward B Cloutman , III (See above for address) TERMINATED: 08/23/2017 ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Lauren Avery (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Nana Wilberforce (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Natasha Merle (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Robert H Stroup (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted
Samuel Spital (See above for address) TERMINATED: 08/23/2017 PRO HAC VICE Bar Status: Not Admitted

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 7 of 19

Amicus Beverly Harrison
Amicus Texas State Conference of the NAACP TEXAS STATE CONFERENCE OF THE NAACP

represented by Leah C Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Coty Montag (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Dana Lossia (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Edward B Cloutman , III (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nana Wilberforce (See above for address) TERMINATED: 02/06/2018 ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Robert H Stroup (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Samuel Spital (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Leah C Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Coty Montag (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Dana Lossia (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Edward B Cloutman , III (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nana Wilberforce (See above for address) TERMINATED: 02/06/2018

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 8 of 19

Amicus NAACP Legal Defense & Educational Fund, Inc. NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.
Amicus National Employment Law Project NATIONAL EMPLOYMENT LAW PROJECT

ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Robert H Stroup (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Samuel Spital (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Leah C Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Coty Montag (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Dana Lossia (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Edward B Cloutman , III (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nana Wilberforce (See above for address) TERMINATED: 02/06/2018 ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Robert H Stroup (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Samuel Spital (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Leah C Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Coty Montag (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Dana Lossia

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 9 of 19
(See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Edward B Cloutman , III (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nana Wilberforce (See above for address) TERMINATED: 02/06/2018 ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Robert H Stroup (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Samuel Spital (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Date Filed 11/04/2013
11/04/2013 11/04/2013 11/04/2013 11/05/2013 11/05/2013 11/05/2013 12/09/2013

# Docket Text
1 COMPLAINT against Jacqueline Berrien, EEOC filed by Texas (State of). (Filer fee note− Clerk to add prior fee payment info here.) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership (Attachments: # 1 Exhibit(s) EEOC Enforcement Guidance, # 2 Cover Sheet) (Mitchell, Jonathan) (Entered: 11/04/2013)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Texas (State of). (Mitchell, Jonathan) (Main Document 2 replaced on 9/8/2014 (not flattened)) (cb). Modified per USCA Fifth Circuit on 9/8/2014 (cb). (Entered: 11/04/2013)
3 New Case Notes: A filing fee is not due for this case. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge. Clerk to provide copy to plaintiff if not received electronically. (cb) (Entered: 11/04/2013)
4 Request for Clerk to issue summons filed by State of Texas. (Mitchell, Jonathan) (Entered: 11/04/2013)
5 Summons issued as to Jacqueline Berrien, EEOC, U.S. Attorney, and U.S. Attorney General. (cb) (Entered: 11/05/2013)
6 NOTICE of Attorney Appearance by Arthur D'Andrea on behalf of State of Texas. (Filer confirms contact info in ECF is current.) (D'Andrea, Arthur) (Entered: 11/05/2013)
7 NOTICE of Attorney Appearance by Andrew Stephen Oldham on behalf of State of Texas. (Filer confirms contact info in ECF is current.) (Oldham, Andrew) (Entered: 11/05/2013)
8 NOTICE of Attorney Appearance by Justin Michael Sandberg on behalf of All Defendants. (Filer confirms contact info in ECF is current.) (Sandberg, Justin) (Entered: 12/09/2013)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 10 of 19

12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/31/2013 12/31/2013
01/27/2014 01/27/2014 01/27/2014 01/27/2014
02/13/2014 02/14/2014
02/14/2014 02/27/2014
02/28/2014 03/18/2014 03/18/2014 03/18/2014 03/26/2014

9 AFFIDAVIT of Service for Summons and Complaint served on Eric H. Holder, Jr. on 11/14/2013. (Oldham, Andrew) (Entered: 12/13/2013)
10 AFFIDAVIT of Service for Summons and Complaint served on Civil Process Clerk on 11/12/2013. (Oldham, Andrew) (Entered: 12/13/2013)
11 AFFIDAVIT of Service for Summons and Complaint served on U.S. Equal Employment Opportunity Commission on 11/12/2013. (Oldham, Andrew) (Entered: 12/13/2013)
12 AFFIDAVIT of Service for Summons and Complaint served on Jacqueline A. Berrien on 11/13/2013. (Oldham, Andrew) (Entered: 12/13/2013)
13 Unopposed Motion for Extension of Time to File Answer filed by Jacqueline Berrien, EEOC with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order Granting Extension of Time Until Jan. 27) (Sandberg, Justin) (Entered: 12/31/2013)
14 ORDER granting 13 Motion for Extension of Time to File Answer re 1 Complaint. Jacqueline Berrien answer due 1/27/2014; EEOC answer due 1/27/2014. No further extensions will be granted. (Ordered by Judge Sam R Cummings on 12/31/2013) (bdg) (Entered: 12/31/2013)
15 MOTION to Dismiss filed by Jacqueline Berrien, EEOC (Attachments: # 1 Proposed Order) (Sandberg, Justin) (Entered: 01/27/2014)
16 Brief/Memorandum in Support filed by Jacqueline Berrien, EEOC re 15 MOTION to Dismiss (Sandberg, Justin) (Entered: 01/27/2014)
17 Appendix in Support filed by Jacqueline Berrien, EEOC re 16 Brief/Memorandum in Support of Motion (Sandberg, Justin) (Entered: 01/27/2014)
18 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Jacqueline Berrien, EEOC. (Sandberg, Justin) (Main Document 18 replaced (not flattened) on 9/8/2014) (cb). Modified on 9/8/2014 per USCA Fifth Circuit (cb). (Entered: 01/27/2014)
19 Unopposed MOTION to Extend Time to Replead and/or Oppose Motion to Dismiss filed by State of Texas (Attachments: # 1 Proposed Order) (Mitchell, Jonathan) (Entered: 02/13/2014)
20 ORDER granting 19 Motion to Extend Time to Replead and/or Oppose Motion to Dismiss is GRANTED. The deadline for Plaintiff to replead and/or oppose Defendant's motion to dismiss is extended to March 4, 2014. (Ordered by Judge Sam R Cummings on 2/14/2014) (lkw) (Entered: 02/14/2014)
21 NOTICE of Erratum filed by Jacqueline Berrien, EEOC (Sandberg, Justin) (Entered: 02/14/2014)
22 Second MOTION to Extend Time to Replead and/or Oppose Motion to Dismiss filed by State of Texas (Attachments: # 1 Proposed Order Second Unopposed Motion for Extension of Time to Replead and/or Oppose Motion to Dismiss) (Mitchell, Jonathan) (Entered: 02/27/2014)
23 ORDER granting 22 Motion to Extend Time. The deadline for Plaintiff to replead and/or oppose Defendants' motion to dismiss is extended to March 18, 2014. (Ordered by Judge Sam R Cummings on 2/28/2014) (cb) (Entered: 02/28/2014)
24 AMENDED COMPLAINT against EEOC, et al, filed by State of Texas. Clerk to issue summons(es) for new federal defendant(s). (Mitchell, Jonathan) Modified text on 3/18/2014 (cb). (Entered: 03/18/2014)
25 RESPONSE filed by State of Texas re: 15 MOTION to Dismiss (Attachments: # 1 Exhibit(s) Vance v. Ball State, # 2 Exhibit(s) UT v. Nassar) (Mitchell, Jonathan) (Entered: 03/18/2014)
26 Summons issued as to Eric H Holder, U.S. Attorney, and U.S. Attorney General. (cb) (Entered: 03/18/2014)
27 NOTICE of Intention to File Motion to Dismiss re: 24 Amended Complaint filed by Jacqueline Berrien, EEOC, Eric H Holder (Sandberg, Justin) (Entered: 03/26/2014)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 11 of 19

03/28/2014 04/04/2014 04/04/2014 04/04/2014 04/18/2014 05/02/2014 05/22/2014 07/22/2014 08/20/2014
08/20/2014 08/25/2014
09/05/2014 09/10/2014 09/17/2014 10/27/2014 01/15/2015

28 ORDER denying as moot 15 Motion to Dismiss. (Ordered by Judge Sam R Cummings on 3/28/2014) (cb) (Entered: 03/28/2014)
29 MOTION to Dismiss for Lack of Jurisdiction filed by Jacqueline Berrien, EEOC, Eric H Holder (Attachments: # 1 Proposed Order) (Sandberg, Justin) (Entered: 04/04/2014)
30 Brief/Memorandum in Support filed by Jacqueline Berrien, EEOC, Eric H Holder re 29 MOTION to Dismiss for Lack of Jurisdiction (Sandberg, Justin) (Entered: 04/04/2014)
31 Appendix in Support filed by Jacqueline Berrien, EEOC, Eric H Holder re 30 Brief/Memorandum in Support of Motion (Sandberg, Justin) (Entered: 04/04/2014)
32 RESPONSE filed by State of Texas re: 29 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit(s) Exhibits Table of Contents, # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C, # 5 Proposed Amendment Exhibit D) (Oldham, Andrew) (Entered: 04/18/2014)
33 Unopposed MOTION for Leave to File Reply Brief in Support of Motion to Dismiss filed by Jacqueline Berrien, EEOC, Eric H Holder with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Proposed Reply Brief) (Sandberg, Justin) (Entered: 05/02/2014)
34 MOTION to Intervene filed by Texas State Conference of the NAACP, Beverly Harrison (Attachments: # 1 Proposed Order) (Cloutman, Edward) (Entered: 05/22/2014)
35 Supplemental Document by State of Texas as to 32 Response/Objection, . (Attachments: # 1 Declaration(s) Exhibit A, # 2 Exhibit(s) Exhibit A−1, # 3 Exhibit(s) Exhibit A−2) (Mitchell, Jonathan) (Entered: 07/22/2014)
36 ORDER: Granting 33 Unopposed MOTION for Leave to File Reply Brief in Support of Motion to Dismiss filed by Eric H Holder, EEOC, Jacqueline Berrien. Granting 29 MOTION to Dismiss for Lack of Jurisdiction filed by Eric H Holder, EEOC, Jacqueline Berrien. Terming 34 MOTION to Intervene filed by Beverly Harrison, Texas State Conference of the NAACP, (Ordered by Judge Sam R Cummings on 8/20/2014) (cb) (Entered: 08/20/2014)
37 JUDGMENT: This case is DISMISSED without prejudice for lack of subject−matter jurisdiction. (Ordered by Judge Sam R Cummings on 8/20/2014) (cb) (Entered: 08/20/2014)
38 NOTICE OF APPEAL to the Fifth Circuit as to 37 Judgment, 36 Order,, Terminate Motions, by State of Texas. Filing fee $505, receipt number 0539−6249334. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Oldham, Andrew) (Entered: 08/25/2014)
USCA Case Number 14−10949 in USCA − Fifth Circuit for 38 Notice of Appeal, filed by State of Texas. (cb) (Entered: 09/05/2014)
Record on Appeal for USCA5 14−10949 (related to 38 appeal): Record consisting of: 1 ECF electronic record (docs 1−38), certified to USCA. To request a copy of the record (on disk or on paper), contact the appeals deputy in advance to arrange delivery. (cb) (Entered: 09/11/2014)
Record on Appeal for USCA5 14−10949 (related to 38 appeal): transmitted to La Tanya R. Harry, NAACP Legal Defense & Educational Fund, Inc. on disk only by mail. (cb) (Entered: 09/17/2014)
Record on Appeal for USCA5 14−10949 (related to 38 appeal): 1 ECF electronic record (docs 1−38), transmitted to Sabrina Wycoff with the Office of the Solicitor General on disk only. Shipped: FedEx No. 771637523467 (cb) (Entered: 10/27/2014)
39 NOTICE OF SUBSTITUTION OF COUNSEL Added attorney Scott A Keller,Scott A Keller for State of Texas. Motion filed by State of Texas (Keller, Scott) Modified text from Motion to Notice on 1/16/2015 (cb). (Entered: 01/15/2015)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 12 of 19

04/21/2015 09/23/2016 09/23/2016 09/27/2016 10/03/2016 10/03/2016 10/03/2016 10/24/2016 10/24/2016 11/10/2016 11/23/2016
05/31/2017 06/02/2017
06/22/2017 06/23/2017 06/23/2017

40 Transcript Order Form: re 38 Notice of Appeal transcript not requested. No hearings. Received from USCA on 5/12/2015. (bdg) (Entered: 05/12/2015)
41 JUDGMENT/MANDATE of USCA as to 38 Notice of Appeal, filed by State of Texas. It is ordered and adjudged that the judgment of the District Court is vacated. Case remanded to the district court for further proceedings. Issued as Mandate: 9/23/2016. (cb) (Entered: 09/26/2016)
42 Opinion of USCA in accordance with USCA judgment re 38 Notice of Appeal, filed by State of Texas. The USCA WITHDRAWS their prior opinion, VACATES the District Court's Judgment Dismissing Complaint, and REMANDS this case to the District Court for further proceedings. (cb) (Entered: 09/26/2016)
43 ORDER: the Court will entertain motions and briefing on the issues that Hawkes may implicate in the instant case. Any such motions shall be filed on or before 9:00 a.m. on October 24, 2016, with any response due 21 days following the filing of a motion. (Ordered by Senior Judge Sam R Cummings on 9/27/2016) (cb) (Entered: 09/27/2016)
44 NOTICE of Attorney Appearance by Michael Christopher Toth on behalf of State of Texas. (Filer confirms contact info in ECF is current.) (Toth, Michael) (Entered: 10/03/2016)
45 NOTICE of Attorney Appearance by Andrew D Leonie on behalf of State of Texas. (Filer confirms contact info in ECF is current.) (Leonie, Andrew) (Entered: 10/03/2016)
46 NOTICE of Attorney Appearance by Austin R Nimocks on behalf of State of Texas. (Filer confirms contact info in ECF is current.) (Nimocks, Austin) (Entered: 10/03/2016)
47 Brief/Memorandum in Support filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr re 43 Order, 30 Brief/Memorandum in Support of Motion to Dismiss (Sandberg, Justin) (Entered: 10/24/2016)
48 Appendix in Support filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr re 47 Brief/Memorandum in Support of Motion to Dismiss (Sandberg, Justin) (Entered: 10/24/2016)
49 RESPONSE filed by State of Texas re: 47 Brief/Memorandum in Support of Motion (Nimocks, Austin) (Entered: 11/10/2016)
50 Unopposed MOTION for Leave to File Supplemental Reply Brief filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr (Attachments: # 1 Exhibit(s) Proposed Supplemental Reply Brief)Attorney Brian G Kennedy added to party Jacqueline Berrien(pty:dft), Attorney Brian G Kennedy added to party EEOC(pty:dft), Attorney Brian G Kennedy added to party Eric H Holder, Jr(pty:dft) (Kennedy, Brian) (Entered: 11/23/2016)
51 MOTION to Withdraw as Attorney filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr (Kennedy, Brian) (Entered: 05/31/2017)
52 ORDER granting 50 Motion for Leave to File Reply Brief and the Reply is DEEMED filed. The Court DENIES Defendants' Motion to Dismiss. The parties shall file cross motions for summary judgment on the merits on or before 7/31/2017. The Court sets the summary judgment motions for hearing on 10/17/2017 at 9:00 AM in US Courthouse, Courtroom C−216, 1205 Texas Avenue, Lubbock, TX 79401−4091 before Senior Judge Sam R Cummings. (Ordered by Senior Judge Sam R Cummings on 6/2/2017) (bdg) (Entered: 06/02/2017)
53 NOTICE of Attorney Appearance by James Ryan Powers on behalf of Jacqueline Berrien, EEOC, Eric H Holder, Jr. (Filer confirms contact info in ECF is current.) (Powers, James) (Entered: 06/22/2017)
54 Unopposed Motion for Extension of Time to File Answer Nunc Pro Tunc filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr with Brief/Memorandum in Support. (Sandberg, Justin) (Entered: 06/23/2017)
55 ORDER granting 54 Motion for Extension of Time to File Answer as to All Defendants. Defendants shall file their Answer on or before June 28, 2017. (Ordered by Senior Judge Sam R Cummings on 6/23/2017) (bmg) (Entered: 06/23/2017)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 13 of 19

06/26/2017
06/26/2017 06/30/2017 07/05/2017 07/26/2017 07/28/2017 07/28/2017
07/31/2017
07/31/2017 07/31/2017 07/31/2017 07/31/2017 07/31/2017

56 ANSWER to 24 Amended Complaint filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Sandberg, Justin) (Entered: 06/26/2017)
57 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Jacqueline Berrien, EEOC, Eric H Holder, Jr. (Sandberg, Justin) (Entered: 06/26/2017)
58 Unopposed MOTION to Extend Time to file cross motions for summary judgment filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Powers, James) (Entered: 06/30/2017)
59 ORDER granting 58 Motion to Extend Time. Cross Motions for Summary Judgment are due on or before 9/14/2017. (Ordered by Senior Judge Sam R Cummings on 7/5/2017) (egp) (Entered: 07/05/2017)
60 Unopposed MOTION for Leave to File Second Amended Complaint filed by State of Texas with Brief/Memorandum in Support. (Attachments: # 1 Proposed Amendment Proposed Second Amended Complaint, # 2 Proposed Order) (Nimocks, Austin) (Entered: 07/26/2017)
61 ORDER granting 60 Motion for Leave to File. The Court finds that the Motion should be GRANTED and the Proposed Second Amended Complaint attached to the Motion for Leave is deemed flled as of the date of this Order.(Unless the document has already been filed, clerk to enter the document as of the date of this order.) (Ordered by Senior Judge Sam R Cummings on 7/28/2017) (zzm) (Entered: 07/28/2017)
62 SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants filed by State of Texas. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (zzm) (Entered: 07/28/2017)
63 *** Motion Terminated. REFILED AS DOCUMENT 72 *** MOTION to Intervene filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Proposed Order). Party BEVERLY HARRISON and TEXAS STATE CONFERENCE OF THE NAACP added. (Cloutman, Edward) Modified to terminate motion per telephone request of Matthew Bailey with NAACP on 8/2/2017. (zzm). Modified to add document number on 8/3/2017 (zzm). (Entered: 07/31/2017)
64 Brief/Memorandum in Support filed by Beverly Harrison, Texas State Conference of the NAACP re 63 MOTION to Intervene (Cloutman, Edward) (Entered: 07/31/2017)
65 Appendix in Support filed by Beverly Harrison, Texas State Conference of the NAACP re 64 Brief/Memorandum in Support of Motion, 63 MOTION to Intervene (Cloutman, Edward) (Entered: 07/31/2017)
66 NOTICE of Attorney Appearance by Edward B Cloutman, III on behalf of Beverly Harrison, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.). Party BEVERLY HARRISON and TEXAS STATE CONFERENCE OF THE NAACP added. (Cloutman, Edward) (Entered: 07/31/2017)
67 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8570341) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Exhibit(s) Certificate of Good Standing, # 2 Proposed Order) (Aden, Leah) (Entered: 07/31/2017)
68 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8570371) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Exhibit(s) Certificate of Good Standing, # 2 Proposed Order) (Spital, Samuel) (Entered: 07/31/2017)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 14 of 19

07/31/2017 07/31/2017 07/31/2017 08/02/2017 08/02/2017 08/02/2017 08/03/2017
08/07/2017
08/07/2017
08/07/2017
08/08/2017 08/08/2017

69 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8570396) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Exhibit(s) Certificate of Good Standing, # 2 Proposed Order) (Montag, Coty) (Entered: 07/31/2017)
70 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8570409) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Exhibit(s) Certificate of Good Standing, # 2 Proposed Order) (Merle, Natasha) (Entered: 07/31/2017)
71 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8570428) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Proposed Amendment Certificate of Good Standing, # 2 Proposed Order) (Wilberforce, Nana) (Entered: 07/31/2017)
72 MOTION to Intervene CORRECTED filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Proposed Order) (Cloutman, Edward) (Entered: 08/02/2017)
73 Brief/Memorandum in Support filed by Beverly Harrison, Texas State Conference of the NAACP re 72 MOTION to Intervene CORRECTED (Cloutman, Edward) (Entered: 08/02/2017)
74 Appendix in Support filed by Beverly Harrison, Texas State Conference of the NAACP re 72 MOTION to Intervene CORRECTED, 73 Brief/Memorandum in Support of Motion (Cloutman, Edward) (Entered: 08/02/2017)
75 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8578740) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Exhibit(s) Certificate of Standing, # 2 Proposed Order)Attorney Elizabeth Lauren Avery added to party Beverly Harrison(pty:intvd), Attorney Elizabeth Lauren Avery added to party Texas State Conference of the NAACP(pty:intvd) (Avery, Elizabeth) (Entered: 08/03/2017)
76 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8581814) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Additional Page(s) Certificate of Good Standing, # 2 Proposed Order Proposed Order)Attorney Dana Lossia added to party Beverly Harrison(pty:intvd), Attorney Dana Lossia added to party Texas State Conference of the NAACP(pty:intvd) (Lossia, Dana) (Entered: 08/07/2017)
77 ANSWER to 62 Amended Complaint,, filed by EEOC, Victoria Lipnic, Jefferson B Sessions, III. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. Attorney Justin Michael Sandberg added to party Victoria Lipnic(pty:dft), Attorney Justin Michael Sandberg added to party Jefferson B Sessions, III(pty:dft) (Sandberg, Justin) (Entered: 08/07/2017)
78 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8583371) filed by Beverly Harrison, Texas State Conference of the NAACP (Attachments: # 1 Additional Page(s) Certificate of Good Standing, # 2 Proposed Order)Attorney Robert H Stroup added to party Beverly Harrison(pty:intvd), Attorney Robert H Stroup added to party Texas State Conference of the NAACP(pty:intvd) (Stroup, Robert) (Entered: 08/07/2017)
79 ORDER granting 67 Application for Admission Pro Hac Vice of Leah C. Aden. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/8/2017) (zzm) (Entered: 08/08/2017)
80 ORDER granting 75 Application for Admission Pro Hac Vice of Elizabeth L. Avery. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/8/2017) (zzm) (Entered: 08/08/2017)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 15 of 19

08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/09/2017 08/09/2017 08/21/2017 08/21/2017 08/23/2017
09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017

81 ORDER granting 70 Application for Admission Pro Hac Vice of Natasha C. Merle. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/8/2017) (zzm) (Entered: 08/08/2017)
82 ORDER granting 69 Application for Admission Pro Hac Vice of Coty R. Montag. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/8/2017) (zzm) (Entered: 08/08/2017)
83 ORDER granting 68 Application for Admission Pro Hac Vice of Samuel Spital. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/8/2017) (zzm) (Entered: 08/08/2017)
84 ORDER granting 71 Application for Admission Pro Hac Vice of Nana Wilberforce. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/8/2017) (zzm) (Entered: 08/08/2017)
85 NOTICE of Attorney Appearance by David Jonathan Hacker on behalf of State of Texas. (Filer confirms contact info in ECF is current.) (Hacker, David) (Entered: 08/08/2017)
86 ORDER FOR ADMISSION PRO HAC VICE granting 76 Application for Admission Pro Hac Vice of Dana Elizabeth Lossia. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/9/2017) (zzm) (Entered: 08/09/2017)
87 ORDER granting 78 Application for Admission Pro Hac Vice of Robert H. Stroup. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Senior Judge Sam R Cummings on 8/9/2017) (zzm) (Entered: 08/09/2017)
88 RESPONSE filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III re: 72 MOTION to Intervene CORRECTED (Sandberg, Justin) (Entered: 08/21/2017)
89 RESPONSE filed by State of Texas re: 72 MOTION to Intervene CORRECTED (Nimocks, Austin) (Entered: 08/21/2017)
90 ORDER denying 72 Motion to Intervene. The Court finds that the Motion to Intervene filed by Beverly Harrison and the Texas State Conference of the NAACP (collectively Movants) should be DENIED for the reasons aptly argued by the Parties in their Responses. However, the Movants may seek to participate as amici curiae if they so choose. (Ordered by Senior Judge Sam R Cummings on 8/23/2017) (zzm) (Entered: 08/23/2017)
91 MOTION for Summary Judgment filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III (Sandberg, Justin) (Entered: 09/14/2017)
92 Brief/Memorandum in Support filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III re 91 MOTION for Summary Judgment (Sandberg, Justin) (Entered: 09/14/2017)
93 Appendix in Support filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III re 92 Brief/Memorandum in Support of Motion for Summary Judgment (Sandberg, Justin) (Entered: 09/14/2017)
94 MOTION for Summary Judgment filed by State of Texas (Nimocks, Austin) (Entered: 09/14/2017)
95 Brief/Memorandum in Support filed by State of Texas re 94 MOTION for Summary Judgment (Nimocks, Austin) (Entered: 09/14/2017)
96 Appendix in Support filed by State of Texas re 94 MOTION for Summary Judgment (Part 1) (Nimocks, Austin) (Entered: 09/14/2017)

Case: 5:13-cv-255 As of: 07/04/2020 01:26 PM CDT 16 of 19

09/14/2017 09/15/2017 09/15/2017
10/05/2017 10/05/2017 10/16/2017 10/16/2017
10/17/2017 10/17/2017
10/20/2017
10/24/2017 10/24/2017

97 Appendix in Support filed by State of Texas re 94 MOTION for Summary Judgment (Part 2) (Nimocks, Austin) (Entered: 09/14/2017)
98 Appendix in Support filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III re 92 Brief/Memorandum in Support of Motion with Certificate of Service (Sandberg, Justin) (Entered: 09/15/2017)
99 ORDER: Defendants shall provide the Court with a courtesy copy of their Appendix to Defendants' Memorandum in Support of Motion for Summary Judgment and Plaintiff shall provide the Court with a courtesy copy of its Appendix in Support of Motion for Summary Judgment. Both courtesy copies shall be submitted on or before 3:00p.m. on September 29, 2017, and should be delivered to the Court at the following address: 1205 Texas Avenue, Room C−210, Lubbock,Texas 79401. (Ordered by Senior Judge Sam R Cummings on 9/15/2017) (bmg) (Entered: 09/15/2017)
100 RESPONSE filed by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III re: 94 MOTION for Summary Judgment (Sandberg, Justin) (Entered: 10/05/2017)
101 RESPONSE filed by State of Texas re: 91 MOTION for Summary Judgment (Nimocks, Austin) (Entered: 10/05/2017)
102 ORDER: Hearing on the parties' Motions for Summary Judgment set for 10/17/2017 09:00 AM in US Courthouse, Courtroom C−216, 1205 Texas Avenue, Lubbock, TX 79401−4091 before Senior Judge Sam R Cummings. (Ordered by Senior Judge Sam R Cummings on 10/16/2017) (bmg) (Entered: 10/16/2017)
103 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8722084)filed by Texas State Conference of the NAACP (Attachments: # 1 Exhibit(s) Good Standing, # 2 Proposed Order)Attorney Philip Mychael Hernandez added to party Texas State Conference of the NAACP(pty:intvd) (Hernandez, Philip) Modified text to reflect fee payment on 10/16/2017 (ali). (Entered: 10/16/2017)
104 ORDER denying 103 Application for Admission Pro Hac Vice of Philip M. Hernandez. Clerk shall return admission fee to Applicant. (Ordered by Senior Judge Sam R Cummings on 10/17/2017) (bmg) (Entered: 10/17/2017)
105 ELECTRONIC Minute Entry for proceedings held before Senior Judge Sam R Cummings: Motion Hearing held on 10/17/2017 re 94 Motion for Summary Judgment filed by State of Texas, 91 Motion for Summary Judgment filed by Eric H Holder, Jr, Victoria Lipnic, EEOC, Jacqueline Berrien, Jefferson B Sessions, III. re: 94 MOTION for Summary Judgment , 91 MOTION for Summary Judgment . Proposed Findings of Fact and Conclusions of Law due by 9:00 a.m. October 25, 2017. Attorney Appearances: Plaintiff − Austin Nimocks and Andrew Leonie; Defense − James Ryan Powers. (Court Reporter: Mechelle Daniel) (No exhibits) Time in Court − 2:15. (clf) (Entered: 10/17/2017)
106 Notice of Filing of Official Electronic Transcript of Motion for Summary Judgment Hearing Proceedings held on 10/17/2017 before Judge Sam R. Cummings. Court Reporter/Transcriber Mechelle Daniel, Telephone number (806) 744−7667. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (76 pages) Redaction Request due 11/13/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/18/2018. (kmd) (Entered: 10/20/2017)
107 Proposed Findings of Fact by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III. (Sandberg, Justin) (Entered: 10/24/2017)
116 Proposed Findings of Fact and Conclusions of Law by State of Texas. (bmg) (Entered: 10/27/2017)

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10/25/2017
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02/01/2018

108 MOTION for Leave to File Brief of Amici Curiae in Support of Defendants' Motion for Summary Judgment filed by Beverly Harrison, Texas State Conference of the NAACP, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) A − Brief of Amici Curiae in Support of Defendants' Motion for Summary Judgment, # 2 Proposed Order). Party Amici Curiae BEVERLY HARRISON, TEXAS STATE CONFERENCE OF THE NAACP, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, AND NATIONAL EMPLOYMENT LAW PROJECT added.Attorney Leah C Aden added to party Beverly Harrison(pty:am), Attorney Leah C Aden added to party Texas State Conference of the NAACP(pty:am), Attorney Leah C Aden added to party NAACP Legal Defense & Educational Fund, Inc.(pty:am), Attorney Leah C Aden added to party National Employment Law Project(pty:am) (Aden, Leah) (Entered: 10/25/2017)
109 NOTICE of Attorney Appearance by Edward B Cloutman, III on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Cloutman, Edward) (Entered: 10/25/2017)
110 NOTICE of Attorney Appearance by Leah C Aden on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Aden, Leah) (Entered: 10/25/2017)
111 NOTICE of Attorney Appearance by Samuel Spital on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Spital, Samuel) (Entered: 10/25/2017)
112 NOTICE of Attorney Appearance by Coty Montag on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Montag, Coty) (Entered: 10/25/2017)
113 NOTICE of Attorney Appearance by Nana Wilberforce on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Wilberforce, Nana) (Entered: 10/25/2017)
114 NOTICE of Attorney Appearance by Dana Lossia on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Lossia, Dana) (Entered: 10/25/2017)
115 NOTICE of Attorney Appearance by Robert H Stroup on behalf of Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP. (Filer confirms contact info in ECF is current.) (Stroup, Robert) (Entered: 10/25/2017)
117 ORDER: Motion for leave to file Amici Curiae Brief 108 by Beverly Harrison is GRANTED. Texas's Motion for Summary Judgement 94 is DENIED in part as to Count I and Defendants' Motion for Summary Judgment 91 is GRANTED in part as to Count I. Texas's request for a declaratory judgment and injunction under 28 U.S.C.§§ 2201−02 is DISMISSED. Texas's Motion for Summary Judgment is GRANTED in part as to the first prong of Count II but DENIED in part as to the second and third prongs of Count II; Defendants' Motion for Summary Judgment is similarly DENIED in part and GRANTED in part as to Count II. Defendants EEOC and the Attorney General of the United States (in any enforcement action against the State of Texas) are ENJOINED from enforcing the EEOC's interpretation of the Guidance against the State of Texas until the EEOC has complied with the notice and comment requirements under the AP A for promulgating an enforceable substantive rule. Texas's remaining requests for declaratory and injunctive relief are DISMISSED. (Ordered by Senior Judge Sam R Cummings on 2/1/2018) (bmg) (Entered: 02/01/2018)
118 JUDGMENT: IT IS ORDERED, ADJUDGED, AND DECREED, pursuant to 5 U.S.C. § 702, that the EEOC's "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII" is a substantive

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02/02/2018 02/05/2018 02/06/2018 03/01/2018 03/22/2018 03/27/2018 05/25/2018
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rule issued without notice and the opportunity for comment. Defendants EEOC and the Attorney General of the United States (in any enforcement action against the State of Texas) are ENJOINED from enforcing the EEOC's interpretation of the Guidance against the State of Texas until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the State of Texas's remaining requests for declaratory and injunctive relief are all DISMISSED. (Ordered by Senior Judge Sam R Cummings on 2/1/2018) (bmg) (Entered: 02/01/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:17,18. Fri Feb 2 13:45:31 CST 2018 (crt) (Entered: 02/02/2018)
119 Unopposed MOTION to Withdraw as Attorney filed by Beverly Harrison, NAACP Legal Defense & Educational Fund, Inc., National Employment Law Project, Texas State Conference of the NAACP (Attachments: # 1 Proposed Order) (Wilberforce, Nana) (Entered: 02/05/2018)
120 ORDER granting 119 Motion to Withdraw as Attorney. Ms. Wilberforce is WITHDRAWN as counsel of record for the amici curiae in this case, which continue to be represented by their remaining counsel. Attorney Nana Wilberforce terminated. (Ordered by Senior Judge Sam R Cummings on 2/6/2018) (bmg) (Entered: 02/06/2018)
121 MOTION to Alter Judgment and for Clarification filed by EEOC, Victoria Lipnic, Jefferson B Sessions, III with Brief/Memorandum in Support. (Powers, James) (Entered: 03/01/2018)
122 RESPONSE filed by State of Texas re: 121 MOTION to Alter Judgment and for Clarification (Nimocks, Austin) (Entered: 03/22/2018)
123 ORDER denying 121 Defendants' Motion to Amend Judgment and For Clarification, filed March 1, 2018. (Ordered by Senior Judge Sam R Cummings on 3/27/2018) (krd) (Entered: 03/27/2018)
124 NOTICE OF APPEAL to the Fifth Circuit by Jacqueline Berrien, EEOC, Eric H Holder, Jr, Victoria Lipnic, Jefferson B Sessions, III. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Sandberg, Justin) (Entered: 05/25/2018)
USCA Case Number 18−10638 in USCA FIFTH CIRCUIT for 124 Notice of Appeal filed by Eric H Holder, Jr, Victoria Lipnic, EEOC, Jacqueline Berrien, Jefferson B Sessions, III. (bmg) (Entered: 06/04/2018)
125 NOTICE OF APPEAL as to 118 Judgment to the Fifth Circuit by State of Texas. Filing fee $505, receipt number 0539−9235784. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Nimocks, Austin) Modified on 6/6/2018 (bmg). (Entered: 06/06/2018)
USCA Case Number 18−10638 in USCA FIFTH CIRCUIT for 125 Notice of Appeal filed by State of Texas. (bmg) (Entered: 06/13/2018)

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06/25/2018
09/18/2018 09/19/2018
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Record on Appeal for USCA5 18−10638 (related to 124 , 125 appeal): Record consisting of: 2 ECF electronic record on appeal (eROA) is certified,. PLEASE NOTE THE FOLLOWING: Licensed attorneys must have filed an appearance in the USCA5 case and be registered for electronic filing in the USCA5 to access the paginated eROA in the USCA5 ECF system. (Take these steps immediately if you have not already done so. Once you have filed the notice of appearance and/or USCA5 ECF registration, it may take up to 3 business days for the circuit to notify the district clerk that we may grant you access to the eROA in the USCA5 ECF system.) To access the paginated record, log in to the USCA5 ECF system, and under the Utilities menu, select Electronic Record on Appeal. Pro se litigants may request a copy of the record by contacting the appeals deputy in advance to arrange delivery. (bmg) (Entered: 06/25/2018)
126 Unopposed MOTION to Withdraw as Attorney filed by State of Texas (Attachments: # 1 Proposed Order) (Nimocks, Austin) (Entered: 09/18/2018)
127 ORDER granting 126 Motion to Withdraw as Attorney. Mr. Nimocks is herebyWITHDRAWN as counsel for Plaintiff, the State of Texas, who shall continue to be represented by remaining counsel of record, David J. Hacker. Attorney Austin Nimocks terminated (Ordered by Senior Judge Sam R Cummings on 9/19/2018) (bmg) (Entered: 09/19/2018)
128 NOTICE of Withdrawal of Arthur D'Andrea as Counsel for Plaintiff filed by State of Texas (Hacker, David) (Entered: 09/26/2018)
129 NOTICE of of Withdrawal of Andrew D. Leonie as Counsel for Plaintiff filed by State of Texas (Hacker, David) (Entered: 09/26/2018)
130 NOTICE of Withdrawal of Andrew S. Oldham as Counsel for Plaintiff filed by State of Texas (Hacker, David) (Entered: 09/26/2018)
131 NOTICE of Withdrawal of Scott A. Keller as Counsel for Plaintiff filed by State of Texas (Hacker, David) (Entered: 09/26/2018)
132 NOTICE of Withdrawal of Michael C. Toth as Counsel for Plaintiff filed by State of Texas (Hacker, David) (Entered: 09/26/2018)
133 JUDGMENT/MANDATE of USCA as to 124 Notice of Appeal filed by Eric H Holder, Jr, Victoria Lipnic, EEOC, Jacqueline Berrien, Jefferson B Sessions, III, 125 Notice of Appeal filed by State of Texas. Issued as Mandate: 09/30/2019. It is ordered and adjudged that the injunction is affirmed as modified, the district courts ruling on the merits of Texass DJA claim is vacated, and the DJA claim is dismissed. IT IS FURTHER ORDERED that defendants−appellants cross−appellees pay to plaintiff−appellee cross−appellant the costs on appeal to be taxed by the Clerk of this Court. (Attachments: # 1 USCA Letter) (bmh) (Entered: 09/30/2019)
134 Opinion of USCA in accordance with USCA judgment re 124 Notice of Appeal filed by Eric H Holder, Jr, Victoria Lipnic, EEOC, Jacqueline Berrien, Jefferson B Sessions, III, 125 Notice of Appeal filed by State of Texas. Because we affirm the injunction, we decline to consider Texass DJA claim. We thus vacate the district courts ruling on the merits of that claim. The injunction is AFFIRMED as modified, the district courts ruling on the merits of Texass DJA claim is VACATED, and the DJA claim is DISMISSED. No remand is needed. (bmh) (Entered: 09/30/2019)
135 Unopposed MOTION to Withdraw as Attorney filed by State of Texas Attorney Kyle Hawkins added to party State of Texas(pty:pla) (Hawkins, Kyle) (Entered: 10/03/2019)
136 Unopposed MOTION to Substitute Attorney, added attorney Kyle Hawkins. Motion filed by State of Texas (Hawkins, Kyle) (Entered: 10/03/2019)
137 ORDER granting 135 Motion to Withdraw as Attorney. Attorney Andrew Stephen Oldham terminated. (Ordered by Senior Judge Sam R Cummings on 10/7/2019) (bmh) (Entered: 10/07/2019)
138 ORDER granting 136 Motion to Substitute Attorney. Accordingly, Scott A. Keller is hereby WITHDRAWN as counsel of record for Plaintiff. (Ordered by Senior Judge Sam R Cummings on 10/7/2019) (bmh) (Entered: 10/07/2019)