EEOC TO REPEAL ITS GUIDANCE ON USE OF CRIMINAL RECORD INFORMATION IN EMPLOYMENT

Question

Will repeal of EEOC's Enforcement Guidance on the use of criminal record information in employent turn back the clock?

  • In its heyday, the EEOC used the Enforcement Guidance to induce large companies to revise their hiring practices with respect to job candidates who had a criminal background.

  • Today, the EEOC's priorities have shifted to protecting religious rights and white male claims of reverse discrimination in the workplace. 

  • Illinois is among 13 states that regulate how employers can use criminal record information during the hiring process.

  • The Illinois Human Rights Act prohibits the consideration of arrest records by employers in making employment decisions. Employers are only permitted to consider conviction records. 

  • Regrettably, Illinois employers continue to revoke job offers based on a job candidate's arrest record history, a clear violation of the Human Rights Act. 

Last month I went to the website for the Equal Employment Opportunity Commission (EEOC) to see if its 2012 Enforcement Guidance on the Consideration of Arrest and Criminal records in Employment Decisions Under Title VII of the Civil Rights Act was still posted. Much to my surprise, it was. What doesn’t surprise me is that the EEOC is finally getting around to repealing it.

In its heyday, the EEOC used the Enforcement Guidance to bring charges against large companies (Dollar General, BMW, Pepsi) whose criminal background policies largely eliminated black or brown applicants from its job pool. Most of these cases were settled and the companies agreed to revise their criminal background hiring policies.

Because the Enforcement Guidance was not a regulation, courts were not bound to rely on. It served more like a carrot than a stick.

As EEOC Turns Its Back on Criminal Background Discrimination, State Protections Remain in Place

Since President Trump’s return to office in 2025, the EEOC has redirected its mission to focusing on protecting religious rights and defending white male claims of reverse discrimination in the workplace.

With the EEOC’s Enforcement Guidance’s repeal a fait accompli, those who believe their job offer was withdrawn due to their criminal history can still seek relief if they live in Illinois or in one of the other 12 states that regulates employer use of criminal history records in vetting job applicants pre- or post-job offer.[1] 

Illinois’s Human Rights Act Sets Clear Guidelines As To What Criminal History Can Be Considered

Since 2020, the Illinois Human Rights Act (IHRA), 775 ILCS 5/2-103, has prohibited employers from taking into consideration a job candidate’s arrest record history. In other words, employers can only consider conviction records. Six years later, I still to hear stories from individuals whose job offers were revoked based solely on a record of an arrest.

The IHRA also instructs employers to give job applicants a chance to provide additional information regarding their conviction history before formally revoking or withdrawing a job offer.  

How One Employer Broke Two Laws Revoking a Job Offer

Just last week, I spoke with a woman who accepted a job offer with a home health agency only to be told she couldn’t work for the company because of her arrest record. The HR representative then falsely asserted that the Illinois Department of Public Health (IDPH) prohibited the company from employing her.

Not only did the company violate the IHRA when it terminated the woman because of her arrest history but it violated the Healthcare Worker Registry Act (HCWRA), 225 ILCS 46/33(d), for failing to perform a fingerprint-based criminal history record check.[2]  Had the company complied with the HCWRA, the IDPH would have informed the company that the woman is eligible to work in healthcare.

Final Thoughts

The Enforcement Guidance was released in 2012 to much fanfare because it had been long overdue. The last time the EEOC addressed the issue of criminal background checks in employment was in 1991.

The Enforcement Guidance provided employers with common sense strategies on how to conduct a risk assessment of someone’s criminal background. Too often the perceived “risk” of hiring someone with a criminal background is nonexistent or vastly overstated – save for runaway fearmongering and stereotyping. 

Trump’s EEOC can ignore the discriminatory impact criminal background checks have on the U.S. workforce all it wants but the problem will persist. Thirty percent of the U.S. population has a record of an arrest. That number surges to nearly 50% for people of color. Those are not insignificant numbers.

Hopefully, more state legislatures will join Illinois and its fellow brethren in enacting laws regulating the use of criminal backgrounds in employment.   

        


[1] The other states that regulate the use criminal history in employment: California, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, and Washington.

[2] Anyone seeking work in healthcare (e.g., hospital, nursing home, rehab facility, home health care) who is not a licensed healthcare worker must undergo a fingerprint-based background check in accordance with the HCWRA. In the situation described above, the health care agency performed a public records background check, not the mandated fingerprint-based background check.

Ina Silvergleid