Beverly Harrison, 61, was “delighted” to serve as a crossing guard in Dallas in 2013 and “so happy to have a chance to give back” to the city she had lived and worked in most of her life. So she was shocked to be terminated after eight days on the job when a background check revealed an assault conviction from 40 years ago.
The conviction stemmed from a fight she had with a woman when she was 19; she served probation, and a court set aside the conviction and dismissed the indictment.
Her termination was a bitter blow to someone who had a long history of employment, including working for the City of Dallas, and no brushes with the criminal justice system since 1975.
If the state gets its way in Texas v. Equal Employment Opportunity Commission, a decades-long policy on employment practices will be stamped out.
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“I do not understand why the officials in my state, including the Attorney General, defend a policy that would keep me, a long-time public servant and grandmother, and others like me, from earning an honest living and giving back to the people in my community,” Harrison stated in a motion filed this week to intervene in the lawsuit.
After years of progress by employers nationwide to ensure equal opportunity to all hires, Texas is looking to categorically deny jobs to applicants based on a criminal conviction. The state also seeks to deny the EEOC the authority to issue “right-to-sue” letters consistent with the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.
The 2012 guidance to the EEOC Title VII of the Civil Rights Act of 1964—which employers practiced long before it was codified—was “crucial” in explaining how employers could not discriminate against job applicants using their conviction and arrest records, Beth Avery, an attorney with the National Employment Law Project (NELP), told Rewire. Texas overturning this “long-standing policy” would create a “major barrier,” particularly for people of color with records, to look for and secure jobs. It would also increase uncertainty among employers on how to avoid violating Title VII while making hiring decisions, Avery said.
While Title VII is federal and takes precedence over state law, Avery said NELP is not aware of any other states that have tried to challenge the EEOC guidance, first written in the 1980s and in practice for even longer. Officials in some states, like New York and Hawaii, have expanded protections to prevent hiring discrimination.
The 2012 guidance was adopted by the EEOC with bipartisan support in a 4-1 vote, and the issue has not usually broken down over partisan lines, Avery said.
“We are seeing a real movement across the country towards giving people with records more consideration when they are applying for jobs. This helps everyone, helps people with records, helps the economy, helps communities, so yes, this kind of flies in the face of all the bipartisan progress that is happening across the country,” she said.
NELP joined the NAACP Legal Defense and Educational Fund, Inc. (LDF), and attorneys from Cloutman & Cloutman LLP and Levy Ratner PC to file the motion this week, according to a press release.
“Unnecessary barriers against individuals with criminal records, which Texas seeks to uphold, will continue to deny millions of Texans of a fair chance to earn an honest living, support and protect their families, and rejoin society as full, reformed members of the community,” said Gary Bledsoe, president of the Texas NAACP, in the release.
Nationwide, around 70 million people—nearly one in three U.S. adults—have an arrest or conviction record, according to NELP’s estimate.
“Far too many Americans, disproportionately Black and Latino, are unfairly and unjustly denied jobs based on mistakes that they made decades ago and that are unrelated to the job at hand,” said Leah Aden, LDF senior counsel, in the release. “The EEOC’s Guidance is a critical tool to assist employers with how to use criminal history information in a responsible and nondiscriminatory manner that is both fair to workers and safe for the public.”
If the court grants the motion to intervene, Harrison will become part of the case along with the Texas State Conference of the NAACP, the release stated.
“I am seeking to be a part of this lawsuit because I am deeply concerned that I, and others like me, may be denied jobs in the future in Texas,” Harrison said. “Such absolute bans are absurd given that my conviction is four decades old and I have demonstrated that I can be a valuable and dependable employee and serve my community in Texas.”
The lawsuit is being heard by Judge Sam R. Cummings. A judgment is expected in September, according to Avery.