Workers still have protections against discrimination when employers consider arrest and conviction records in hiring or other employment decisions, even as the Equal Employment Opportunity Commission (EEOC) withdraws its guidance.
Issued in 2012, with bipartisan support, the guidance explained how Title VII, the federal law prohibiting employment discrimination based on race, national origin, and other protected characteristics, applies when employers use criminal history information to make employment decisions. It urged employers not to automatically reject an applicant who has a record and instead consider the job requirements and the candidate’s qualifications as well as how much time has passed since the offense and its relevance to the role.
On Oct. 29, the EEOC voted 2-1 to rescind its guidance on arrest and conviction records.
But Title VII has not changed. Court precedents explaining when employers’ use of criminal history violates the law remain in force, and workers can still bring discrimination claims to challenge unlawful practices.
A Neutral Hiring Rule Can Still Discriminate
When employers use arrest or conviction records in overbroad ways to screen applicants, those practices can unfairly exclude qualified Black, Latino, American Indian, and Alaska Native people for reasons that have little bearing on whether someone can do the job.
About 28% of adults in the U.S. have a criminal record, but that figure is higher for these communities, reflecting long-documented patterns of racial profiling and overpolicing along with broader economic and social inequities. And people with criminal records can face significant barriers to finding stable employment, including employers rescinding job offers after background checks.
Title VII prohibits employers from using a background check to treat applicants differently because of race or national origin, or to exclude qualified workers based on records that do not bear on their ability to perform the job. A hiring rule can apply to everyone and still unfairly screen qualified people out of jobs. When a rule falls more heavily on certain workers because of race or another protected characteristic, employers may have to show that the practice is job related and serves a legitimate business need.
That protection is known as disparate impact law. It helps ensure that hiring decisions focus on skills and abilities that matter for the job, rather than unjustified barriers that disproportionately exclude individuals based on race, sex, or other protected characteristics.
This principle is not new. In the 1971 case Griggs v. Duke Power Co., the Supreme Court recognized that Title VII reaches employment practices that are neutral on their face but discriminatory in operation. Courts have long held that criminal record screening can be discriminatory when it creates unjustified barriers for qualified workers based on race or national origin without being job-related and consistent with business necessity. Building on those foundations, Congress wrote disparate impact protections into Title VII in 1991.
Workers Can Enforce These Protections Without the EEOC
Although the guidance was not binding on employers, its rescission matters.
The guidance gave workers and employers a detailed explanation of the EEOC’s view on the application of Title VII to criminal record screening. Its removal also reflects the federal government’s broader retreat from enforcing disparate impact claims, following President Donald Trump’s April 23, 2025, executive order calling for the elimination of disparate impact liability.
That means less federal enforcement of claims involving criminal record policies. It could also create confusion about employer obligations.
But pulling back government enforcement does not eliminate workers’ discrimination protections. Workers have the right to be free from discrimination in the use of arrest and conviction screens and may continue to file charges of discrimination and lawsuits to challenge discriminatory practices.
Workers have used these protections to expand job opportunities by securing fairer criminal history screening from employers, including the federal government.
For example, the U.S. Census Bureau agreed in 2016 to pay a $15 million settlement and change its practices to assess whether an applicant’s record actually bears on the job, resolving claims on behalf of a class of Black and Latino applicants for Census jobs brought by a coalition of civil rights organizations and Outten & Golden.
Other Laws Also Protect Workers with Criminal Records
Title VII is not the only federal law that may protect workers with criminal records. The Fair Credit Reporting Act generally requires employers to tell workers they plan to obtain a background report, get their written authorization, and give them a copy before taking adverse action based on it. Workers can also dispute inaccurate or incomplete information with the company that prepared the report.
State and local fair chance laws also govern how employers use criminal history when making employment decisions. Pennsylvania law, for example, generally permits employers to consider felony and misdemeanor convictions only to the extent they relate to an applicant’s suitability for the job.
Employers Should Still Evaluate the Person, Not the Record
For employers, the EEOC’ s withdrawal of its guidance does not make individualized review of a record any less valuable. Considering the nature of an offense, how much time has passed, and its relationship to the job can help employers determine whether excluding someone based on their record is job-related and consisted with business necessity.
These practices can help employers comply with Title VII, reduce legal risk and widen the pool of qualified applicants.
Workers with Records Still Have Rights
If you are denied a job, fired, or otherwise disadvantaged because of an arrest or conviction record, you can take action to protect your rights. Whether a criminal record screen is lawful depends on the circumstances. An overbroad screen, or one applied more harshly to some applicants than to others, may violate Title VII.
If you believe a criminal record screen unfairly denied you a job, you can still file a charge with the EEOC or a state or local agency, or consult an employment lawyer to learn more about your rights. Prompt action is essential because discrimination claims are subject to filing deadlines that vary depending on the law and where the discrimination occurred.
Learn More About Criminal History and Background Checks
This article is provided for general informational purposes only. It is not legal advice and may not reflect the most current law or apply to your facts or jurisdiction. Reading this article or using this website does not create an attorney-client relationship with Outten & Golden LLP. You should consult a qualified attorney about your specific situation.
