Quick Hits
- The EEOC has submitted a draft to rescind its 2012 enforcement guidance related to using arrest and conviction records in employment decisions.
- The 2012 guidance indicated that an employer’s use of criminal history information in employment decisions could implicate Title VII of the Civil Rights Act of 1964 under disparate treatment or disparate impact theories.
- The federal government has signaled its intention not to pursue enforcement of federal anti-discrimination laws based on disparate impact theories.
The 2012 guidance stated that employers using criminal background information to make employment decisions might violate Title VII either by disparate treatment (intentional discrimination based on a protected characteristic) or disparate impact (when a facially neutral policy or practice disproportionately affects one or more protected groups, even without intent).
The 2012 guidance indicated that employer use of criminal histories might have a disparate impact based on race and national origin, most notably on Black and Hispanic applicants and employees. It affirmed that the traditional three-part framework for establishing a disparate impact case applies in the criminal background check context:
- First, a plaintiff must identify a particular practice (such as an employer’s background check program) and establish that it causes a disparate impact.
- Then the burden shifts to the employer to show the practice is job-related and consistent with business necessity. Although the guidance set out two ways employers could establish this defense, most employers opted to do so using the targeted screen method, i.e., establishing that the employer considered (1) the nature and gravity of the offense; (2) the amount of time that has passed since the offense or completion of the sentence; and (3) the nature of the job held or sought. The guidance listed nine individualized assessment factors for employers to consider after an applicant or employee received an opportunity to address the criminal history. For example, an employer seeking to hire school bus drivers might demonstrate a business necessity for excluding applicants with recent prior convictions for driving under the influence or for distributing child pornography. Many employers have used the three Green factors (named for a federal circuit court case) plus the nine individualized assessment factors for more than fourteen years.
- Once an employer establishes that a background check program or practice is job-related and consistent with business necessity, a plaintiff still may prevail by identifying a less discriminatory alternative.
Beginning in 2025 and continuing in 2026, the federal government has pivoted away from enforcing employment laws based on disparate impact theories.
Expected Impact of the Guidance Rescission
Based on executive branch past practice, it is very possible (perhaps even likely) that the EEOC will rescind the 2012 guidance and not reissue any new guidance on employment-related criminal background checks. If that occurs, the rescission may have an impact on some legal theories under Title VII. If the guidance is rescinded, background-check disparate-treatment allegations (e.g., evaluating or treating one applicant more harshly than another applicant based on the first applicant’s protected characteristic) should continue to be viable.
Although the EEOC would likely continue not to pursue disparate impact charges (opting instead to issue right-to-sue letters), disparate impact allegations based on criminal histories would continue in private lawsuits, as disparate impact is based on Title VII and well-established case law, not executive agency decision-making or guidance. However, rescission of the 2012 guidance could indirectly affect private lawsuits because employers may argue that the rescission undercuts a Title VII disparate impact claim, while private plaintiffs may argue that the rescission does not impact existing Title VII disparate impact case law. Interpretive case law would have to fill in the gaps.
Additionally, the guidance recission would not impact the federal Fair Credit Reporting Act (FCRA), which imposes procedural and substantive requirements on employers using background checks obtained from third-party vendors, or state and local background check laws governing the use of criminal history information, which would continue to be enforced by agencies other than the EEOC and/or private plaintiffs. In fact, recent moves by some state agencies have made clear they are prepared to fill in the gap created by the EEOC’s decision not to pursue disparate impact claims. State and local background check laws, which have proliferated in recent years, vary widely in their restrictions and requirements, including when employers may conduct background checks and which types of criminal history may be considered in taking adverse employment actions. This patchwork of requirements may make compliance particularly challenging for multistate employers.
Next Steps
If the 2012 guidance is rescinded, the EEOC will likely continue to pursue enforcement of cases involving disparate treatment, but not disparate impact, in the use of criminal background checks in employment. Plaintiffs, on the other hand, likely will continue to bring private lawsuits alleging Title VII discrimination based on both disparate treatment and disparate impact claims. The guidance recission is not expected to directly impact the federal FCRA or state or local laws governing the use of criminal history information.
Employers may wish to stay abreast of any EEOC final rules, review their written policies to ensure compliance with state and local laws regarding background checks, and consider training hiring managers to stay compliant with background check laws.
Ogletree Deakins’ Background Checks Practice Group will continue to monitor developments and will provide updates on the Background Checks and Employment Law blogs as additional information becomes available.
In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state Background Check laws, as well as those of major localities. Subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
Stephen R. Woods is a shareholder in Ogletree Deakins’ Greenville office.
Gustavo A. Suárez is senior counsel in Ogletree Deakins’ Greenville office.
Amie M. Willis is compliance counsel in Ogletree Deakins’ Atlanta office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C. office.
Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts
