LDF Condemns EEOC Rescission of 2012 Guidance on Criminal Background Checks

Today, the U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule rescinding its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, which gave employers guidance on how to avoid violating federal anti-discrimination laws byrelying on criminal background checks and arrest records in employment screening.

"Everyone deserves a chance to be hired for the jobs for which they are qualified-not unfairly excluded based on past mistakes that have nothing to do with whether they can do the work," said Demetria McCain, Director of Policy at the Legal Defense Fund. "Because of racial profiling and bias in the criminal legal system, Black people and other people of color are more likely to have been arrested or convicted at some point in their lives. Federal law protects all people from unjustified policies and practices, including overbroad background check policies that are not necessary for the job, as well as policies that employers apply unevenly. Rescinding the EEOC's Arrest and Conviction Records Guidance is just the latest action by an administration that refuses to protect workers, particularly workers of color. It absolutely does not change the law."

The guidance helped employers identify when criminal background screening practices unnecessarily exclude qualified candidates. While the law itself has not changed, by rescinding the guidance, the EEOC is removing a resource that helped employers comply with antidiscrimination law and examine if seemingly neutral employment policies had an unjustified disproportionate impact on people based on race, gender, or other protected traits.

Racial discrimination shapes every stage of the criminal legal system, contributing to disparities in arrests, convictions, and incarceration. As a result, many criminal background check policies disproportionately exclude Black workers from employment. These policies effectively transfer inequities from the criminal legal system into the workplace, compounding barriers to economic opportunity. Research does not support the assumption that a criminal record predicts poor job performance.

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Founded in 1940, theLegal Defense Fund (LDF) is the nation's first civil rights legal organization. LDF has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957, though it was founded under the leadership of Thurgood Marshall while he was at the NAACP. LDF's Thurgood Marshall Institute (TMI) is a division of LDF that undertakes innovative research and houses LDF's archive. In all media attributions, please refer to us as the Legal Defense Fund or LDF (do not include NAACP) and refer to the Institute as LDF's Thurgood Marshall Institute or TMI.