The Equal Employment Opportunity Commission has rescinded its 2012 enforcement guidance addressing employers’ use of arrest and conviction records under Title VII. The rescission is effective immediately.
The guidance addressed the disparate-impact risk of criminal-history screenings. It advised employers to consider the nature and gravity of the offense, the time elapsed, and the nature of the position before excluding an individual. The rescission is consistent with the EEOC’s reduced emphasis on disparate-impact enforcement.
Employers’ use of criminal history remains subject to disparate-treatment and disparate-impact challenges under Title VII. Employers also remain subject to expanding state and local fair-chance laws governing when employers may obtain and consider criminal-history information and the procedures preceding an adverse decision.
The rescission does not require employers to abandon lawful practices that they adopted under the guidance. Several of the guidance’s recommended practices remain useful risk-management measures, including:
- consistently applying screening standards;
- ensuring that exclusions relate to the position’s duties and risks;
- avoiding unnecessarily broad or permanent exclusions;
- distinguishing arrests from convictions; and
- reviewing cases individually where appropriate.
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