Legislative lowdown: EEOC rescinds enforcement guidance on criminal background checks

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The Equal Employment Opportunity Commission (EEOC) recently voted to rescind Obama-era enforcement guidance regarding discrimination by the use of arrest and conviction records in employment decisions.

Though the rescission doesn’t change employers’ legal obligations under Title VII of the Civil Rights Act, it does signal an area where President Donald Trump’s administration is moving away from cases involving disparate impact liability. That legal theory, which was called out in a 2025 executive order, holds that neutral-seeming policies and procedures can nevertheless disproportionately affect a protected class.

“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,” EEOC Chair Andrea Lucas said in a statement regarding the decision.

The lone Democrat on the commission, Kalpana Kotagal, criticized the decision and said it would “likely cause confusion among employers.”

What the EEOC rescinded. The 2012 guidance detailed how disparate impact could apply to employers’ use of criminal background checks, noting that such checks might disproportionately affect Black and Hispanic applicants or employees.

Research shows that having a criminal record can substantially alter candidates’ job prospects. One landmark study from 2003 showed that the rates of white applicants who received a callback from an employer dropped from 34% to 17% when they disclosed a criminal record, while Black applicants saw a steeper drop, from 14% to 5%.

The guidance asked employers to demonstrate that their background check practices were “job-related and consistent with business necessity,” according to a recent blog post from attorneys with law firm Ogletree Deakins. (The original document is no longer on the EEOC website.)

Employers could defend their criminal background check programs by demonstrating that they considered three factors, including “the nature and gravity of the offense; the amount of time that has passed since the offense or completion of the sentence; and the nature of the job held or sought,” among others, per this guidance.

How HR is affected by this policy. The EEOC’s decision shouldn’t substantially change how employers comply with Title VII, given private plaintiffs can still bring claims alleging that businesses’ criminal background check programs are discriminatory.

The rescission also doesn’t impact other federal statutes that govern how employers conduct background checks, such as the Fair Credit Reporting Act.

Local legislation will continue to affect background check practices, as well. More than 35 states and 150 cities and counties have so-called “Ban the Box” laws in place, which prohibit employers from including questions about criminal history in job applications, and delay background checks until later in the hiring process, according to the National Employment Law Project.