The U.S. Equal Employment Opportunity Commission (EEOC) voted recently to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act (Guidance).
The significant change in federal enforcement guidance is effective immediately, but doesn’t resurrect policy statements superseded by the 2012 Guidance; moreover, this doesn’t require employers to give up any lawful practices they may have put into place in response to it.
“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,” said EEOC Chair Andrea Lucas. “Rescinding 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. The EEOC will continue to vigorously enforce these protections in accordance with the law.”
The EEOC’s action is in line with the agency’s recent pattern of shying away from enforcement of laws brought on the basis of disparate impact.
Federal courts decide disparate-impact claims by applying a burden-shifting framework, sometimes known as an "effects test." Plaintiffs must first identify the specific practice or policy (such as a loan approval or leasing rule) that’s responsible for a discriminatory (or adverse) effect. Then they must meet a "robust causality requirement," meaning that they must demonstrate more than a mere imbalance by sex or race. For example, they must show that the policy or practice identified causes that difference. There’s no liability "based solely on a showing of a statistical disparity."
Background
The 2012 guidance addressed the way in which criminal history screening could constitute illegal discrimination. It gave employers guidance in addressing differential treatment based on race or national origin (disparate treatment) and neutral criminal history screening rules that disproportionately affected a protected group (disparate impact). The 2012 guidance asked employers to connect screening criteria to the position at issue, weighing factors like the nature and seriousness of the offense, the time elapsed, and the responsibilities of the job.
The EEOC’s withdrawal of an agency guidance document but doesn’t change the law or provide broad approval for automatic criminal-history exclusions. While criminal history isn’t itself protected under federal antidiscrimination law, employer screening procedures may still create risk if employers apply them inconsistently or use them as a proxy for discrimination.
Note that there are additional state and local requirements that govern when employers may ask about criminal history, how an assessment must be conducted, and what notices or opportunities to respond must be provided.
The EEOC’s recent move doesn’t alter separate requirements imposed by California law. The Fair Chance Act, which went into effect in January 2018, is a state law that prohibits employers with five or more employees from asking about an applicant’s conviction history prior to making a job offer. This “Ban the Box” law was enacted to decrease employment obstacles for those with conviction histories. The California Department of Civil Rights says that this is because “gainful employment is essential to these individuals supporting themselves and their families and to improving their community ties and mental health – all of which reduce recidivism.”
The Fair Chance Act is part of California’s employment antidiscrimination statute called the Fair Employment and Housing Act (FEHA), which is enforced by the Civil Rights Department and is found in Government Code section 12952.
The Fair Chance Act prohibits employers from:
Including on a job application any questions about conviction history before a conditional job offer has been made;
Asking about or considering your criminal history before a conditional job offer has been made; and
Considering information about arrests not followed by conviction, participation in pretrial or posttrial diversion programs that have been completed and the underlying pending charges or conviction dismissed, sealed, or eradicated, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
Bottom Line
Employers should understand that despite the fact that the EEOC looks to be moving away from disparate impact enforcement, individual plaintiffs will still bring discrimination lawsuits alleging both disparate treatment and disparate impact theories. As a result, employers should refrain from making sweeping changes to hiring practices or policies based on the news that the guidance was rescinded.
Again, employers shouldn’t treat the EEOC’s rescission of the criminal history guidance as authorization to adopt broad policies or exclusions based upon an employee’s or applicant’s criminal history. Instead, employers should examine their current screening criteria to make sure that employment decisions are based upon legitimate, nondiscriminatory reasons, and that they consistently apply screening criteria to reduce the risk of disparate treatment. Finally, employers should continue to comply with California state and local requirements, which are still independent of the EEOC’s guidance.
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About the Author
Matthew L. Eanet, Esq.
Matt is managing shareholder at Eanet, PC, a Los Angeles litigation boutique he founded in 2012. He's an expert in complex commercial litigation matters involving real estate, employment, trade secret, trademark and trade dress, data breach, privacy and general business disputes, served as a U.S. Army JAG prosecutor, and has been selected by Super Lawyers (California) every year from 2015-2026.
Reviewed November 2026