What's Happening?
The Equal Employment Opportunity Commission (EEOC) is moving to repeal its 2012 enforcement guidance concerning the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act. The Office of Management and Budget
(OMB) has received a draft final rule from the EEOC, titled “Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act.” This guidance, issued in 2012, outlined how arrest and conviction records could lead to intentional discrimination (disparate treatment) or disproportionate impact (disparate impact) on protected classes. While the timeline for OMB approval and subsequent publication by the EEOC is not yet clear, the move signals a significant shift in the agency's approach to these issues. The original guidance provided a framework for employers to establish “business necessity” for considering such records, often relying on the “Green factors” which include the nature and gravity of the offense, the time passed since the offense, and the nature of the job sought.
Why It's Important?
The potential repeal of the EEOC's 2012 guidance on arrest and conviction records carries significant implications for U.S. employers and job applicants. While the guidance itself may be rescinded, employers should not assume they can use criminal background checks without legal risk. Disparate treatment claims, where an employer applies a criminal background policy more harshly against one protected class, will likely still violate Title VII and remain subject to EEOC investigation. Furthermore, the disparate impact theory, though reportedly not pursued by EEOC leadership in recent years, is still recognized by the U.S. Supreme Court and codified in Title VII, meaning plaintiffs can still bring such claims. This creates a complex legal landscape where federal and state laws continue to govern the use of criminal records in hiring. The change could lead to increased litigation from private plaintiffs and state agencies, as employers navigate a less clear federal regulatory environment while still being bound by the underlying principles of non-discrimination.
What's Next?
The immediate next step involves the Office of Management and Budget completing its review of the EEOC’s proposed final rule. If approved, the EEOC is expected to publish the rule, at which point the 2012 guidance would be officially repealed. However, the exact timeline for these actions remains uncertain. Employers will need to closely monitor these developments and understand that even without the specific guidance, the core principles of Title VII regarding non-discrimination still apply. Legal experts anticipate that employers will need to continue exercising caution and potentially consult legal counsel to ensure their hiring practices comply with federal and state anti-discrimination laws, particularly concerning disparate treatment and disparate impact claims. The plaintiff’s bar and state non-discrimination agencies are likely to remain active in this area, regardless of the EEOC’s specific enforcement posture.
Beyond the Headlines
The potential repeal of the EEOC's guidance on arrest and conviction records delves into deeper societal and ethical considerations regarding rehabilitation and second chances. The original guidance aimed to mitigate the disproportionate impact that blanket bans on hiring individuals with criminal records can have on certain racial and ethnic groups, who are statistically overrepresented in the criminal justice system. Rescinding this guidance, even if the underlying legal principles of Title VII remain, could be perceived as a step back from efforts to promote fair chance hiring and reduce recidivism. It could also exacerbate existing inequalities in employment opportunities for individuals with past convictions, making it harder for them to reintegrate into society and contribute to the economy. The move highlights the ongoing tension between employer concerns about safety and liability, and the broader societal goal of providing equitable opportunities for all, including those who have paid their debt to society.
