The EEOC rescinded its 2012 guidance on arrest and conviction records, and the Ninth Circuit kept California’s captive audience meeting ban blocked.
EEOC drops criminal records guidance: The Commission voted to rescind its 2012 enforcement guidance on considering arrest and conviction records under Title VII, effective immediately. The guidance cautioned employers that automatically rejecting applicants with criminal records could disproportionately affect job seekers by race or national origin.
Why it matters: The vote is the latest step in the administration’s retreat from disparate impact enforcement. In June, the Justice Department concluded that the EEOC’s disparate impact interpretations are unconstitutional and said background checks should be treated as presumptively job related.
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CHRO Consideration: Despite the EEOC’s guidance rescission, large employers should be cautious about loosening their screening practices for criminal history, given state law requirements and disparate impact liability in private lawsuits.
California captive audience ban stays on ice: The Ninth Circuit upheld an injunction blocking SB 399, which bars California employers from requiring meetings about political or religious matters, including (most importantly) the employer’s views on unionization. The three-judge panel rejected California’s argument that the law regulates conduct rather than speech.
Why it matters: California’s law is a key test case for captive audience bans adopted by more than a dozen states in recent years. Most challenges in other states have failed on procedural grounds, without addressing the laws’ merits.
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CHRO considerations: Although the 9th circuit decision is a win for employer speech, captive audience laws remain on the books in 13 other states. Meanwhile, at the federal level, the NLRB’s own ban remains in effect, although the current Board and General Counsel has signaled its intent to overturn it.
