EEOC Rescinds Guidance on Considering Criminal History in Employment Decisions

The U.S. Equal Employment Opportunity Commission (EEOC) recently voted to rescind its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act.

The rescission does not restore policy statements superseded by the guidance, originally approved in 2012. It also does not require employers to “abandon any lawful practices they may have adopted in response to it,” according to an EEOC statement.

In that Oct. 29 announcement, EEOC Chair Andrea Lucas said withdrawing the enforcement guidance “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.”

Earlier in October, Littler Mendelson attorneys Barry Hartstein and Jim Paretti outlined what EEOC rescinding the guidance on considering criminal history in employment decisions could mean.

“Employers should not think that they may now use arrest or conviction records however they wish without fear of liability,” Hartstein and Paretti cautioned.

“An employer that applies a criminal background policy more harshly against one protected class than another … will still likely violate Title VII, nothing suggests EEOC will not continue to investigate and pursue those charges,” they continued.

In addition, EEOC reportedly directed staff in 2025 to not investigate or pursue any cases based on disparate impact theory, Hartstein and Paretti wrote. However, they said, that theory is still recognized by the Supreme Court and was codified by Congress in Title VII.

“As such, disparate impact claims may still be brought under federal law—that the EEOC has stated it will not bring such cases does not mean that the plaintiff’s bar is limited in doing so or will follow suit,” according to Hartstein and Paretti.

“Finally, disparate impact liability remains available under many state non-discrimination laws,” the attorneys wrote, “meaning employers continue to face liability under state law as well as federal.”