What's Happening?
The U.S. Equal Employment Opportunity Commission (EEOC) is in the process of rescinding its 2012 guidance concerning employers' use of arrest and conviction records in employment decisions. This guidance, which is currently undergoing federal review,
addresses how criminal history information can implicate Title VII of the Civil Rights Act of 1964 under disparate treatment and disparate impact theories. The 2012 guidance advised against blanket exclusions based on criminal history and recommended a targeted approach considering the nature of the offense, time passed, and job relevance. It also distinguished between arrest and conviction records, cautioning against exclusions based solely on arrests.
Why It's Important?
The potential rescission of the EEOC's criminal history guidance could significantly alter how U.S. employers approach background checks and hiring practices. While the guidance itself does not have the force of law, it has served as a key framework for employers to ensure compliance with Title VII and avoid discrimination. Its removal might lead to increased uncertainty for businesses regarding best practices for considering criminal records. Although disparate impact liability under Title VII remains valid, the EEOC's shift in enforcement priorities could embolden some employers to adopt less stringent or more exclusionary policies, potentially impacting individuals with criminal records seeking employment and raising concerns among civil rights advocates.
What's Next?
Employers should continue to review their policies on criminal history information in hiring, ensuring compliance with Title VII and applicable state and local laws, even if the EEOC guidance is rescinded. The disparate impact theory, which holds that neutral policies can be discriminatory if they disproportionately affect protected groups, remains a recognized legal principle. Therefore, employers should still aim for job-related and business-necessary exclusions. Additionally, other regulations like the Fair Credit Reporting Act and various state and local 'ban-the-box' laws will continue to govern criminal background screening. Legal counsel is advised for employers to navigate these evolving standards and minimize legal risks.
Beyond the Headlines
The move to rescind this guidance reflects a broader ideological shift in regulatory approaches, potentially signaling a more employer-friendly stance from the EEOC. While the guidance aimed to reduce barriers to employment for individuals with criminal records, its rescission could be seen as prioritizing employer flexibility over strict anti-discrimination enforcement in this area. This could lead to a patchwork of regulations across states and localities, as some jurisdictions have enacted their own fair-chance hiring laws. The long-term implications could include a rise in litigation challenging employer hiring practices under disparate impact theories, as private plaintiffs may step in where federal enforcement priorities shift.
