EEOC RESCINDS 2012 ENFORCEMENT GUIDANCE
On October 29, the EEOC announced that the agency has rescinded its 2012 guidance addressing the circumstances under which employers’ consideration of criminal history information may violate Title VII of the Civil Rights Act of 1964 (Title VII). EEOC Chair Andrea Lucas stated that rescission of the guidance “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.”
Notably, rescission of the guidance does not amend Title VII or eliminate potential liability arising from employers’ consideration of arrest and conviction records in employment decisions. As Chair Lucas noted “[r]escinding this 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] [t]he EEOC will continue to vigorously enforce these protections in accordance with the law.”
The rescission further clarifies the EEOC’s current enforcement posture regarding criminal background checks, particularly with respect to disparate impact claims challenging facially neutral screening policies that disproportionately exclude applicants based on protected characteristics.
Rather than representing a significant change in enforcement practices, the rescission largely formalizes the agency’s existing approach, under which it has already deprioritized investigations and enforcement actions involving disparate impact theories. Importantly, employers will remain subject to the substantive requirements of Title VII, and courts will retain authority to evaluate discrimination claims involving criminal history screening under applicable law.
BACKGROUND ON THE EEOC’S 2012 GUIDANCE
In April 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The guidance addressed how employers’ use of criminal history information could give rise to discrimination claims under two distinct theories: disparate treatment and disparate impact.
Disparate Treatment
Disparate treatment occurs when an employer intentionally treats applicants or employees differently based on a characteristic protected under Title VII, such as race or national origin.
In the criminal background screening context, disparate treatment may arise when an employer disqualifies applicants of one race based on particular criminal records but does not disqualify similarly situated applicants of another race with comparable records.
The EEOC’s rescission does not change Title VII’s prohibition against intentional discrimination. Employers that apply criminal history screening policies inconsistently based on protected characteristics will therefore continue to face potential liability under federal law.
Disparate Impact
Disparate impact occurs when a facially neutral employment policy or practice disproportionately affects individuals in a protected class.
Under Title VII, a criminal history screening policy that disproportionately excludes individuals in a protected class may give rise to a disparate impact claim. An employer may defend against such a claim by demonstrating that the challenged practice is job-related for the position in question and is consistent with business necessity.
Even where an employer shows such proof, a plaintiff may prevail by demonstrating the availability of a less discriminatory alternative employment practice that serves the employer’s legitimate objectives.
The EEOC’s 2012 guidance discussed the use of a targeted screening process that considers three factors derived from Green v. Missouri Pacific Railroad Co., 549 F.2d 1158 (8th Cir. 1977):
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct, and/or completion of the sentence; and
- The nature of the job held or sought.
These factors, commonly referred to as the Green factors, have been central to the EEOC’s approach to evaluating whether criminal history exclusions are job-related and consistent with business necessity.
Rescission of the guidance withdraws the EEOC’s existing policy interpretation concerning criminal history screening but does not, by itself, invalidate the underlying judicial decisions or statutory standards governing disparate impact claims.
CONTINUED EXPOSURE UNDER FEDERAL AND STATE LAW
While the EEOC has withdrawn its 2012 guidance, employers should not interpret the rescission as authorization to adopt unrestricted criminal background screening practices.
Title VII’s prohibition against disparate treatment remains unchanged. Employers that apply criminal history screening policies more harshly to applicants or employees based on race, national origin, or another protected characteristic may continue to face discrimination claims.
Disparate impact remains a recognized theory of liability under Title VII. While EEOC leadership has reportedly directed agency staff not to pursue disparate impact investigations or enforcement actions, disparate impact liability is expressly recognized under federal law. Private plaintiffs may therefore continue to pursue disparate impact claims regardless of the EEOC’s enforcement priorities.
Employers must continue to comply with applicable state and local laws governing criminal history inquiries and employment decisions. Many jurisdictions impose requirements that are independent of the EEOC’s guidance, including restrictions on the timing of criminal history inquiries, individualized assessment requirements, limitations on the consideration of certain criminal records, and notice obligations before an adverse employment decision.
For example, Minneapolis and Washington state recently adopted additional fair chance employment protections requiring covered employers to evaluate criminal history information in connection with employment decisions.
As discussed in our prior LawFlash, Minneapolis and Washington State Impose ‘Fair Chance’ Requirements on Employers That Consider Criminal History, these laws impose additional substantive and procedural requirements on employers that consider applicants’ or employees’ criminal histories. These requirements operate independently of the EEOC’s guidance and are not affected by its rescission.
Employers operating across multiple jurisdictions should continue to evaluate their criminal background screening practices under the federal, state, and local requirements applicable to their workforces.
TAKEAWAYS FOR EMPLOYERS
- Continue applying criminal history screening policies consistently. Employers should ensure that criminal background screening policies are administered consistently across applicants and employees, without regard to race, national origin, or other characteristics protected under Title VII.
- Evaluate existing criminal background screening procedures. While the EEOC’s rescission alters the agency’s enforcement approach, disparate impact claims remain available under federal law. Employers should continue evaluating whether criminal history exclusions are appropriately connected to the positions at issue and supported by legitimate business considerations.
- Maintain compliance with state and local fair chance laws. Employers should review applicable state and local requirements, including restrictions on criminal history inquiries, individualized assessments, and notice procedures. Rescission of the EEOC’s guidance does not affect these independent obligations.
