EEOC Rescinds Guidance On Arrest And Conviction Records

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) rescinded its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act. This rescission does not require any specific action by employers, but demonstrates a policy change at the EEOC, at least for now. 

The EEOC has long taken the position that employers’ consideration of applicants’ criminal history in hiring decisions can be discriminatory and violate Title VII. It urged employers to engage in an individualized assessment of each applicants’ background. The EEOC recommended that employers develop narrow policies that screen only for specific offenses directly related to the essential job functions at issue for the specific position in question. 

Many states have taken the EEOC’s approach even further by completely prohibiting employers from asking about arrest or conviction records on employment applications via “ban the box laws.” Nevada adopted a “ban the box law” but only in relation to public employers. It permits the consideration of an applicants’ criminal history after the candidate has processed through the hiring process and requires the public employer to make an individualized assessment.

The EEOC’s rescission of its guidance is related to the agency’s decision to shelve disparate impact cases, in accord with the Trump administration’s policy directives. A disparate impact case considers whether an employer’s neutral policy – e.g., we do not hire any felons — can have an unintended discriminatory impact on individuals – e.g., the employer unintentionally hires fewer African American males. 

Although the EEOC has decided not to prosecute or take disparate impact cases, this theory of discrimination may still be viable in private lawsuits. Additionally, the EEOC will still consider whether an employer’s consideration of arrest or conviction records resulted in intentional discrimination against an applicant. For these reasons, employers still need to be careful with arrest and conviction records. If you would like to discuss your current policy, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.