EEOC Rescinds 2012 Guidance on Arrest and Conviction Records
The commission withdrew its guidance on how employers may consider arrest and conviction records in hiring, leaving record-based exclusion criteria to be defended against disparate-impact and statutory challenges on their own terms.
According to a law-firm alert, on October 29 the US Equal Employment Opportunity Commission rescinded its 2012 enforcement guidance addressing employers' consideration of arrest and conviction records in employment decisions. That guidance had been the Commission's principal interpretive statement on whether criminal-record screening criteria can raise disparate-impact exposure under Title VII, and it shaped how employers and in-house counsel structured record-based exclusions and job postings.
Sophisticated employers should not read the rescission as permission. It withdraws guidance, not statutory obligations: Title VII's disparate-impact framework, the Fair Credit Reporting Act's accuracy and adverse-action requirements, and state fair-chance and "ban the box" statutes operate independently of federal EEOC guidance. The practical effect of removing the guidance is greater uncertainty about how far the agency and plaintiffs' bar will push criminal-record exclusions, particularly in sectors where record prevalence correlates with race, national origin, or sex.
Concrete next steps: audit hiring criteria, posting language, and background-screening workflows against disparate-impact metrics; document business necessity for record-based exclusions; and confirm that screening vendors and recruiters apply consistent, jurisdiction-specific rules. Watch for follow-on EEOC rulemaking or technical assistance, and for disparate-impact and pretextual litigation filed in the wake of the rescission.