EEOC Rescinds Guidance on Criminal Background Checks in Hiring

The U.S. Equal Employment Opportunity Commission (EEOC) voted on Wednesday, Oct. 28, to rescind, effective immediately, its enforcement guidance regarding how employers may use and weigh arrest and conviction records in their hiring decisions.

The eliminated policy, which the EEOC approved in 2012 during the administration of then-President Barack Obama, provided detailed guidelines on how employers could evaluate criminal histories without running afoul of Title VII of the Civil Rights Act of 1964.

Title VII is a federal law that prohibits employment discrimination and retaliation based on protected characteristics (e.g., race, sex, religion, national origin).

The EEOC clarified that the rescission doesn’t restore any legacy policy statements that were previously superseded by the 2012 guidelines. In addition, the commission noted that the decision doesn’t require employers to abandon any lawful background check practices they may already have established in alignment with the 2012 text.

EEOC chair Andrea Lucas positioned the vote as a “corrective measure” to align the commission with its legislated boundaries, stating, “The commission’s rescission of the enforcement guidance reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.”

However, Lucas emphasized that the removal of the specific guidance doesn’t grant employers “license to engage in unlawful discrimination” during the hiring process.

“Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination,” she said. “The EEOC will continue to vigorously enforce these protections in accordance with the law.”

Susanna Fultz and Michael Votano, attorneys at the Barley Snyder law firm, provided additional guidance for employers in a blog post, stating, “[Employers should] continue to review how criminal history information is used in hiring and other employment decisions and ensure their policies comply with Title VII requirements and applicable state and local laws. Employers also should remember that Title VII is not the only law affecting criminal background screening. Depending on the circumstances and jurisdiction, employers may have obligations under the Fair Credit Reporting Act and state or local fair-chance, ban-the-box, antidiscrimination and criminal-record laws.”

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