The Equal Employment Opportunity Commission (EEOC) recently rescinded its longstanding guidance on how employers should consider arrest and conviction records in hiring. That might sound like one less thing to worry about when running background checks. But not so fast.
The EEOC’s withdrawal of its prior guidance did not change Title VII of the Civil Rights Act of 1964 (Title VII). And in Louisiana, state law independently requires many of the practices the EEOC recommended in its now rescinded guidance.
Here’s what changed, what didn’t, and what Louisiana employers should keep doing.
What the EEOC’s Prior Guidance Said
In 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (No. 915.002). For years, it was the go-to resource for employers designing background-check policies. The guidance warned that blanket policies excluding applicants with criminal records could violate Title VII if they disproportionately screened out applicants of a particular race or national origin. Instead of automatic disqualification, the EEOC recommended that employers weigh three factors:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct, or completion of the sentence; and
- The nature of the job held or sought.
Beyond these factors, the EEOC recommended that employers evaluate each applicant individually and give applicants an opportunity to respond before making a final decision. The guidance also stressed that an arrest, by itself, is not proof of criminal conduct.
What Changed?
On October 28, the EEOC voted 2–1 to rescind the guidance. It announced the vote the next day, and the rescission took effect immediately. No replacement guidance has been issued. The agency also noted that the rescission neither brings back the policy statements that preceded the 2012 guidance nor requires employers to drop lawful practices they put in place because of it.
The rescission does not change Title VII. Applicants can still bring discrimination claims, including disparate-impact claims, and employers may still need to show that a criminal-history exclusion is job-related and consistent with business necessity. And as EEOC Chair Andrea Lucas noted in announcing the rescission, Title VII still prohibits race and national-origin discrimination, including hiring requirements that serve as proxies for intentional discrimination.
Louisiana Employers Still Have Specific Obligations
For Louisiana employers, the rescission may matter less than it seems.
Louisiana has no statewide “ban-the-box” law barring private employers from asking about criminal history on job applications. But state law does limit how employers may use that information.
Under La. R.S. 23:291.2, unless another law provides otherwise, an employer making a hiring decision may not request or consider an arrest record or a charge that did not result in a conviction if that information comes from a background check.
For other criminal history, such as convictions, the employer must make an individual assessment of whether the record has a direct and adverse relationship with the specific duties of the job. That assessment must take into account:
- The nature and gravity of the offense or conduct;
- The time that has elapsed since the offense, conduct, or conviction; and
- The nature of the job sought.
Sound familiar? These are essentially the same three factors the EEOC recommended in its now-rescinded guidance. So, while the EEOC has changed its position, Louisiana employers must still follow many of the same practices because state law independently requires them.
What Should Employers Do Now?
For Louisiana employers, the safest course is largely the same as before:
- Keep making individualized assessments. Weigh the nature and gravity of the offense resulting in the conviction, how much time has passed, and how the offense relates to the job.
- Know what your background-check vendor reports. Make sure decisionmakers are not requesting or considering arrests or charges that did not result in a conviction when that information came from a background check.
- Avoid automatic disqualifications. Blanket exclusions still carry discrimination risk under Title VII.
- Don’t forget the Fair Credit Reporting Act (FCRA). The FCRA’s rules for vendor-prepared background reports, including disclosure, written authorization, and the adverse-action process, are unaffected.
In sum, the EEOC’s rescission is a significant policy shift, but it is not a free pass to ignore criminal-history screening requirements. For Louisiana employers in particular, the standards for evaluating convictions remain largely unchanged.
Liskow employment lawyers Ellie George and Tommy McGoey are available to answer questions about the EEOC’s rescission, its impact on employers’ hiring practices, and Louisiana’s laws governing the use of criminal records in employment decisions. For further inquiries, visit our Labor & Employment practice page.