Employment & Labor Insider

The U.S. Equal Employment Opportunity Commission reportedly submitted this week a proposal to rescind its Enforcement Guidance on the use of criminal background information in employment.

The proposal is currently being reviewed by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

The Guidance, issued in 2012 during the Obama Administration, took the position that considering criminal records in the employment context could violate Title VII of the Civil Rights Act of 1964, either as direct discrimination (“Your criminal record is no problem unless you’re Irish”), or because the employer's policy applied to everybody but had a disparate impact on applicants or employees of certain races or national origins.

The Guidance is still available here, and a summary of the Guidance is here. (For now.)

As Cara Crotty has reported extensively, the Trump Administration opposes the disparate impact theory of discrimination.

The EEOC Guidance said that employers could ask for criminal background information on a non-discriminatory basis but restricted the uses to which the information could be put. For example, arrest records could almost never be considered.

Criminal convictions could be disqualifying if the employer validated the exclusion with respect to the particular job at issue, or if the employer conducted an individualized assessment of the conviction (including the seriousness of the crime and how long ago it occurred), the individual’s circumstances, and the requirements of the job.

Criminal convictions could also be used if federal law disqualified individuals with those convictions from being employed in the position. This exception did not apply to state or local law requirements. In other words, the EEOC's position was that taking action to be in compliance with state or local criminal background requirements would not be a defense to a federal discrimination claim.

The Guidance was significant when released, but since that time, numerous states have enacted “ban-the-box” and other legislation that set standards at least as demanding as the standards set by the EEOC. Moreover, employers often have criminal background checks performed by third parties, and the third parties can screen out any information that should not be considered -- such as arrests -- before providing the information to the employers.

And, as Cara has pointed out, although the Trump Administration takes a different view, disparate impact is still a valid theory of discrimination:

. . . Title VII still prohibits disparate impact discrimination, [and] courts are still applying the [2012] EEOC standard, private plaintiffs are still bringing claims, and a growing number of states are addressing the issue directly .  . ..

In short, rescission of the EEOC Guidance may not make a difference to most employers because they will still have to comply with restrictions under other laws and even Title VII, and also because they already have more rigorous practices in place to prevent violations.

"When can I start, Boss?" "Um, that keyboard will work better if you turn it around."

Regardless of what happens at the EEOC, criminal history should never be used to screen out individuals based on race, national origin, or any other legally protected category.

But you already knew that.