Legal Alert: EEOC Rescinds 2012 Guidance on Use of Criminal History in Employment Decisions
The Equal Employment Opportunity Commission (EEOC) has officially withdrawn its 2012 guidance on employers’ use of criminal history and conviction records for job applicants and employees. In 2012, the Obama-era EEOC issued guidance detailing the interplay of Title VII and the potential for disparate treatment (intentional discrimination) and/or disparate impact discrimination when an employer considers the criminal history or conviction records of job applicants during the hiring process. It did not prohibit employers from considering an individual’s criminal history when making employment decisions, but it warned that exclusions based on a criminal record, even if uniformly applied, may disproportionately exclude individuals of a particular race or national origin (i.e., a disparate impact). Such discrimination would have been impermissible unless the employer showed the exclusion was “job related and consistent with business necessity.”
While the 2012 guidance was not federal law and did not change the language or application of Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin, it indicated how the EEOC would interpreted Title VII and how it might rely on that guidance in handling administrative enforcement actions. In its concluding words from an April 19, 2012 Q&A document further explaining the 2012 guidance, and with a not-so-subtle nod to employers, the EEOC stated that its guidance “provides best practices for employers to consider when making employment decisions based on criminal records.”
But as of October 28, 2026, that guidance is no more. EEOC Chair Andrea Lucas called the recission a reaffirmation of the EEOC’s “commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority,” but reminded employers that the rescission of the 2012 guidance in no way granted carte blanche 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.”
Will the rescission of the 2012 guidance cause a shift in how Title VII applies to an employer’s hiring decisions? In a word, no. An employer who intentionally discriminates against a protected class of individuals—e.g., based on race or national origin—through its implementation of a criminal history hiring policy in making employment decisions violates Title VII and will likely face administrative enforcement actions and litigation. But the EEOC’s guidance removal reinforces a policy shift away from federal agency-level investigations and litigation based on disparate impact theory, so we may see fewer EEOC investigations and lawsuits related to alleged disparate impacts caused by employers’ considerations of criminal histories in employment decisions. But the U.S. Supreme Court still recognizes disparate impact discrimination, and Congress codified such liability in Title VII. Consequently, an individual may still sue an employer in a private cause of action for disparate impact discrimination under Title VII (after first filing a charge of discrimination with the EEOC), and the employer may still be found liable. Additionally, several states and localities have adopted “ban the box” initiatives and fair chance laws establishing stricter requirements and standards for employers seeking criminal histories during hiring.
If you have questions regarding compliance with federal or state employment laws, EEOC charges, workplace investigations, discrimination or harassment claims, or other employment-related issues, please contact Kessler Collins’s team of experienced attorneys to help you navigate these challenges and protect your interests.
