On October 29, 2026, the Equal Employment Opportunity Commission (“EEOC”) rescinded enforcement guidance from 2012 regarding the use of criminal convictions in employment-related decisions. This rescission, effective immediately, revokes previous EEOC guidance advising employers that the use of criminal history in screening job applicants could violate Title VII under certain circumstances. However, employers still need to take care to ensure their hiring policies do not intentionally or unintentionally impact applicants on the basis of their race.
Title VII is a federal law that bans employment discrimination on the basis of race, color, gender, religion, and national origin. Courts have interpreted this statute to give rise to two causes of action: disparate treatment and disparate impact. Under a claim for disparate treatment, an employee alleges their employer intentionally treated them differently in the context of their employment because of their membership in one of these protected classes. Under a claim for disparate impact, an employee alleges that a certain employment practice disproportionately affects employees based on their protected characteristics.
Under the Obama era guidance, the EEOC took the position that the consideration of arrest and conviction records could give rise to claims for disparate impact and disparate treatment under the right circumstances. This guidance also notified employers of the criteria it used in evaluating whether a given employment practice would give rise to a claim for disparate impact or disparate treatment. In rescinding this enforcement guidance, the EEOC has made clear that it does not intend to investigate or pursue any claims against employers regarding their use of criminal history in hiring decisions. However, that decision does not prohibit employees and job applicants from bringing claims in court against companies based on such a hiring practice.
Employers should be aware that the EEOC only enforces and adjudicates claims under Title VII. An employee can still bring a claim against an employer in court for disparate impact and disparate treatment under Title VII and applicable state law. Ultimately, it will fall to a Court and a jury to determine whether the employer violated an employee’s protected rights under federal or state discrimination law, which underscores the need for regular review of employment and hiring practices. Importantly, this action does not change the law or any court’s interpretation of past precedent relating to Title VII. Employers should still consider existing law in the jurisdictions in which they operate when reviewing their employment policies.
At Bailey Cavalieri, our labor and employment practice group is dedicated to helping companies navigate the rapidly changing legal landscape for employers. If you have questions or need assistance regarding workplace matters, please contact us.