Employers’ ban the box obligations persist despite EEOC’s guidance rescission

On October 28, the Equal Employment Opportunity Commission (EEOC) voted to rescind its guidance regarding consideration of arrest and conviction records in employment decisions. The rescission took effect immediately.

The previous guidance, which was released in 2012 during the Obama Administration, is no longer available on the agency’s website. It covered both disparate treatment liability and disparate impact liability, stating that violations might occur when:

• An employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment).
• An employer’s neutral policy has a disproportionate impact on Title VII-protected individuals and is not job related and consistent with business necessity (disparate impact).

The rescission is consistent with the EEOC’s enforcement plan for fiscal years 2025-2029, which states the agency’s intent to “eliminate the use of disparate impact liability theories…to the maximum degree possible consistent with [Executive Order] 14281.”  

What does this mean for employers? In practical terms, probably not a whole lot.

First, since the issuance of the previous guidance in 2012, numerous states and localities have enacted ban the box laws that greatly restrict employers’ consideration of applicants’ criminal history when making employment decisions. Employers must continue to follow these laws despite the EEOC’s guidance rescission.

Second, Title VII and many state-law counterparts (such as California’s Fair Employment and Housing Act) specifically reference disparate impact liability. Even if the federal government declines to come after employers under a disparate impact theory of liability, private citizens – including applicants rejected following a review of their criminal history – still can. This is true even if a particular jurisdiction does not have a ban the box law.

Accordingly, recommended best practices for employers relating to consideration of applicants’ criminal history information remain unchanged:

• Stay on top of, and comply with, all relevant restrictions relating to the consideration of applicants’ criminal history. These include not only ban the box laws, but also laws relating to background checks and clean slate laws (which generally deal with sealed and expunged criminal records), as well as credit check laws.
• Conduct all mandatory criminal background checks (these are often required, for example, for positions involving direct interactions with children or the elderly).
• Follow FCRA’s detailed notice, disclosure, authorization and adverse action requirements for third-party background checks.
• When possible, refrain from running a criminal background check until after a conditional offer of employment has been made.
• Remember that an arrest, unlike a conviction, is not a finding of guilt.
• Weigh the nature and severity of an offense, as well as how long ago it occurred, before basing any adverse employment decision solely on a criminal record.
• Use criminal background checks only for the purposes specified and keep findings confidential, to the extent possible.
• Engage in secure records disposal practices.