State of Texas v. EEOC et al

Filing 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
)
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.
employment.”

DADS “applies absolute criminal bars to

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.
prohibit

the

State,

its

agencies,

and

its

Those categorical exclusions
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

17

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
[phone]
Dated: November 4, 2013

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