EEOC Rescinds Guidance on Criminal Records: What This Means for Employment Background Checks

The Equal Employment Opportunity Commission (EEOC) rescinded its 2012 guidance on employers’ use of arrest and conviction records in employment decisions under Title VII. Announced on Oct. 29, the rescission took effect immediately.  

EEOC Chair Andrea Lucas stated that the rescission “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.”

Although the rescission signals a shift in federal enforcement priorities, it does not change Title VII or employers’ obligations under other federal, state and local laws governing the collection and use of criminal history information.

The 2012 EEOC Guidance Clarified How Employers Can Review Criminal History

The 2012 guidance addressed how employers’ use of workers’ criminal history information could give rise to disparate treatment and disparate impact claims. It cautioned that treating workers with comparable criminal histories differently because of race or national origin could violate Title VII. Facially neutral criminal history exclusions may also give rise to disparate impact claims if they disproportionately exclude a protected group and are not job related and consistent with business necessity.

To reduce these risks, the guidance encouraged employers to tailor criminal history exclusions to the position by considering the nature and gravity of the offense, the time elapsed since the offense or completion of the sentence, and the nature of the job.

It also generally recommended an individualized assessment, giving individuals screened out an opportunity to explain why the exclusion should not apply to their circumstances, including by providing evidence of rehabilitation or relevant work history. The guidance acknowledged that Title VII did not necessarily require an individualized assessment in every case.

The guidance further distinguished arrests from convictions. Because an arrest, standing alone, does not establish that criminal conduct occurred, the guidance cautioned employers against excluding an individual based solely on an arrest record.

 What the Change in EEOC Guidance Means for Employers

The rescission is consistent with the EEOC’s reduced focus on the enforcement of disparate impact claims. However, Lucas emphasized that rescinding the guidance “does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination,” and that the EEOC “will continue to vigorously enforce these protections in accordance with the law.”

Employers should keep the following in mind:

• Disparate treatment remains unlawful. Rejecting an applicant based on a criminal record while overlooking a comparable record for another applicant because of race or national origin remains unlawful under Title VII.
• Private disparate impact claims remain available under federal law. The EEOC’s enforcement priorities do not eliminate disparate impact liability under Title VII. Private plaintiffs may continue to pursue these claims in court.

• State and local laws still apply. Many states and municipalities have “ban-the-box” or fair chance hiring laws restricting when and how employers may consider criminal history.

• The Fair Credit Reporting Act is unchanged. Employers that obtain background checks from a consumer reporting agency remain subject to the Fair Credit Reporting Act (FCRA), including its disclosure and written authorization requirements.

What Should Employers Do Now?

The rescission changes the EEOC’s guidance, not the laws governing employers’ use of criminal history. Before revising background check policies or procedures, employers should consult with legal counsel to assess their obligations under applicable federal, state and local laws. Employers should also continue to apply their screening policies consistently, without regard to race, national origin, or any other characteristic protected under Title VII.

Contact Claire Monsour or any member of the Phelps labor and employment team with questions.