EEOPC to rescind 2012 criminal background check guidance under Title VII
The agency is withdrawing its enforcement guidance that required employers to conduct individualized assessments of arrest and conviction records, easing concerns over disparate‑impact claims.
The U.S. Equal Employment Opportunity Commission (EEOC) announced that it will rescind its 2012 enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act. The guidance had instructed employers that a neutral criminal‑background‑check policy could have a disparate impact on protected classes and urged the use of a nine‑factor individualized‑assessment framework. By withdrawing the guidance, the EEOC signals a shift away from the disparate‑impact theory as a basis for liability and a broader deference to employers’ neutral policies. Employers should re‑evaluate onboarding and personnel‑screening protocols and consult counsel for compliance. A review of the final rule’s text will provide further clarity on record‑keeping requirements under the new framework. Guidance revisions will also affect wage‑hour analyses and anti‑discrimination training programs.