Beverly Harrison was standing at an intersection around the corner from McNair Elementary School in Dallas, Texas. It was her second week as a crossing guard, and she was still getting used to the new job. Suddenly, someone emerged from the building to deliver a message: Human Resources wanted to see her. Harrison, 61, went to the office and was told something came up on her background check—an assault charge from 1975. She should turn in her things, they said. Dallas County Schools, after discovering she had a criminal record, was letting her go.
Harrison still lives with the consequences of something she did when she was 19 years old. She got into a fight and was charged with aggravated assault in the third degree. Since then, she’s never been convicted of another crime and has worked other jobs for the city, including in its Marshal’s Office, which provides various court and detention services. But more than 40 years later, that one incident from her past remains an obstacle for her to get and maintain employment.
Black Americans are incarcerated at six times the rate of whites, the Pew Research Center has found. That was a primary reason why the Equal Employment Opportunity Commission passed an enforcement guidance in 2012 that said Title VII of the 1964 Civil Rights Act forbids blanket employment discrimination of people with records. The guidance, which passed by a bipartisan 4-1 vote, said that because people from low-income communities of color are so disproportionately convicted of crimes, hiring policies that place absolute bars on candidates with a conviction will, by extension, discriminate against minorities.
Employers have since been required to grant such applicants individualized assessments and consider factors like the nature and gravity of the offense, how much time has passed, whether the applicant has demonstrated rehabilitation, and whether the past criminal offense has any direct connection to the position being sought.
But if the state of Texas has its way, those standards will no longer be codified in federal law and people like Harrison will once again be without legal protection. One in three Americans has a criminal record, according to the Department of Labor.
In November 2013, then–Texas attorney general and current Governor Greg Abbott filed a suit to block the EEOC order, and asked a federal court to issue a declaratory judgment saying it is legal for state agencies to deny jobs to people with records, and block the EEOC from issuing right-to-sue letters, a legal notification the agency issues when it determines there are grounds for a discrimination claim.
The suit was initially dismissed, but the US Court of Appeals for the Fifth Circuit revived it in June 2016 on the basis that Texas was affected by the guidance as an employer bound by Title VII—meaning that because the state hires people, and is thus forced to comply with its mandate, it has a right to challenge the guidance in court.
In August, the NAACP Legal Defense and Educational Fund and the National Employment Law Project, along with lawyers from two private firms, filed a motion to intervene. The group’s motion sought to make both Harrison and the Texas Conference of the NAACP new defendants in the case, giving its lawyers the ability to defend the guidance in court. They considered that to be crucially important, since they feared the Trump administration may not defend the EEOC’s ruling.