• The EEOC has submitted a draft to rescind its 2012 enforcement guidance related to using arrest and conviction records in employment decisions.
• The 2012 guidance indicated that an employer’s use of criminal history information in employment decisions could implicate Title VII of the Civil Rights Act of 1964 under disparate treatment or disparate impact theories.
• The federal government has signaled its intention not to pursue enforcement of federal anti-discrimination laws based on disparate impact theories.

The 2012 guidance stated that employers using criminal background information to make employment decisions might violate Title VII either by disparate treatment (intentional discrimination based on a protected characteristic) or disparate impact (when a facially neutral policy or practice disproportionately affects one or more protected groups, even without intent).

The 2012 guidance indicated that employer use of criminal histories might have a disparate impact based on race and national origin, most notably on Black and Hispanic applicants and employees. It affirmed that the traditional three-part framework for establishing a disparate impact case applies in the criminal background check context:

• First, a plaintiff must identify a particular practice (such as an employer’s background check program) and establish that it causes a disparate impact.
• Then the burden shifts to the employer to show the practice is job-related and consistent with business necessity....

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