Not a surprise, given the Administration’s stance on “disparate impact.”
The U.S. Equal Employment Opportunity Commission reportedly submitted this week a proposal to rescind its Enforcement Guidance on the use of criminal background information in employment.
The proposal is currently being reviewed by the Office of Information and Regulatory Affairs of the Office of Management and Budget.
The Guidance, issued in 2012 during the Obama Administration, took the position that considering criminal records in the employment context could violate Title VII of the Civil Rights Act of 1964, either as direct discrimination (“Your criminal record is no problem unless you’re Irish”), or because the employer's policy applied to everybody but had a disparate impact on applicants or employees of certain races or national origins.
The Guidance is still available here, and a summary of the Guidance is here. (For now.)
As Cara Crotty has reported extensively, the Trump Administration opposes the disparate impact theory of discrimination.
The EEOC Guidance said that employers could ask for criminal background information on a non-discriminatory basis but restricted the uses to which the information could be put. For example, arrest records could almost never be considered.
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