As an employment lawyer, I am keenly aware of changes in our country’s laws affecting employment opportunities and specifically those affecting discrimination in employment opportunities. In the past few years, the federal government has cut back on or repealed several laws intended to ensure equal employment opportunities for historically disadvantaged groups — mostly Blacks and Hispanics (but also women and the LGBTQ+ community). These efforts have been justified based on the slogan of “anti-Woke” and in the name of protecting White males from “unlawful discrimination” in favor of other groups. This attempt to reverse decades of progress toward equality in employment opportunities was magnified this month when the federal Equal Employment Opportunity Commission (EEOC) formally rescinded its guidance concerning the use of criminal background checks by employers. This may not seem like a big deal, and can be easily defended by its advocates as an effort to give back to employers the ability to keep “criminals” out of their workplaces. But it is far more invideous.

The foundation of the EEOC’s guidance on this subject — and many state laws that have memorialized it (mostly in “Blue” states) — is the inescapable fact, based on decades of research — that Blacks and Hispanics are 3- to 4-times more likely to have a criminal conviction on their record than Whites. This is not a reflection of the fact that Blacks and Hispanics are more likely to engage in criminal conduct. Rather, it is a reflection of the reality that Whites, particularly in their teens and twenties, are far less likely to be saddled with a criminal conviction for the same conduct. Blacks and Hispanics are more likely to show a “conviction” for three reasons — all of which have their genesis in the systemic racism in our history. First, minority youths are much more likely to be jailed pending a trial, pressuring them to plead guilty to a felony in order to escape a lengthy incarceration, which can often last longer than the sentence they accept as part of a plea deal. Getting out of jail with “time served” as their punishment is an offer most cannot refuse, resulting in release, but also resulting in a criminal record. Whites, both because of a generally higher income level, the capacity to make bail (paid by their parents, for example), and a higher rate of being released pending trial, don’t face the same pressure to plead guilty. Second, Whites are far more likely to have their charges reduced to either a misdemeanor or dismissed entirely after actions by their lawyers and efforts by politicians and family members to convince local prosecutors to reduce or drop charges. In the vast majority of those cases, the judges, prosecutors, police, and politicians are White. And Third, White youths are far less likely to be arrested in the first place for similar criminal behavior – mostly drug use and possession and minor property crimes and DUIs. Not only is enforcement much more lax in wealthier communities, but once arrested, White suspects are more likely to be released with a warning or allowed to pay a fine or do community service in order to avoid having a criminal record.

The EEOC, along with progressive lawmakers, civil rights advocates, and researchers, pointed out the disparity in criminal conviction records served as a proxy for racism. Instead of having to reject a Black of Hispanic applicant for employment based on their merits, employers could screen out anyone with a criminal conviction, resulting in an applicant pool that included a far higher percentage of White applicants who survived the background check process. The EEOC’s guidance to employers warned that the rejection of an applicant based solely on having a criminal record was unlawful and advised that employers must take a closer look at the nature of the offense, how long ago it happened, and whether the criminal activity bears any relationship to the work for which the employer is hiring. Failure to make this kind of individualized evaluation could be deemed unlawful race discrimination.

The current administration is walking back that long history of scrutiny — giving employers who are so inclined permission to screen their applicants based on criminal history without fear of federal discrimination charges.

This is how racism creeps back in after decades of efforts to beat it back. Anyone who claims that it’s just an effort to keep “criminals” out of the workplace is simply being dishonest. The White boy who was caught with drugs when he was 18 and got off with a warning from the friendly cop is no less a “criminal” than the Black boy who was cuffed and booked and who pled guilty because he couldn’t make bail and had no other reasonable choice.

It’s a sad day for equality in America.

=== see below a summary of the foundational research and facts ====

1. The Foundational Research & Data Sources

To support the conclusion that blanket criminal record exclusions create an unlawful “disparate impact” under Title VII of the Civil Rights Act of 1964, the EEOC and related legal briefs relied on three main pillars of research: [1, 2]

• Federal Criminal Justice Data (BJS & FBI): The EEOC cited national longitudinal datasets from the Bureau of Justice Statistics and arrest data from the FBI Uniform Crime Reporting Program to establish baseline conviction and incarceration rates across racial demographics.
• Self-Report Behavior vs. Arrest Studies (NSDUH & Youth Cohorts): To address whether higher conviction rates reflected higher rates of actual criminal behavior, researchers compared arrest records against self-reported behavior surveys—such as the National Survey on Drug Use and Health and the National Longitudinal Survey of Youth. These studies tracked teens and young adults in their twenties to measure how often illegal acts (particularly drug possession and low-level offenses) resulted in formal charges.
• Prosecutorial Discretion and Plea Bargaining Studies: Criminological research (including landmark reports by The Sentencing Project and state-level sentencing commissions) examined how cases moved through the courts. Researchers analyzed charging decisions, access to private legal counsel versus overburdened public defenders, and plea bargains to see how similar offenses resulted in felony convictions for Black defendants versus reduced misdemeanor charges, diversion programs, or expungements for White defendants.
• Audit Studies on Hiring (Pager): The 2012 guidance also drew heavily on sociological field experiments—most notably sociologist Devah Pager’s landmark 2003 audit study, “The Mark of a Criminal Record,” which sent matched pairs of young Black and White men in their early twenties to apply for entry-level jobs with identical resumes, varying only whether they disclosed a felony drug conviction.

2. Broad Statistical Conclusions

Across these datasets and studies, the research cited by the EEOC established several broad statistical patterns:

• Disproportionate Lifetime Likelihood of Incarceration: According to BJS projections cited in the EEOC’s 2012 guidance, 1 in 3 Black men and 1 in 6 Hispanic men were expected to be incarcerated in their lifetime, compared to 1 in 17 White men.
• Disparities in Arrests vs. Population Share: While Black Americans made up roughly 12% to 13% of the general U.S. population during the periods studied, FBI and BJS data showed they accounted for roughly 28% of all arrests and 36% to 40% of the incarcerated population.
• Comparable Rates of Underlying Conduct: Self-report studies consistently found that White and Black youth and young adults used and sold illicit drugs at roughly similar rates (with White youth occasionally reporting slightly higher rates of usage). Despite comparable behavior, Black youth were arrested for drug offenses at rates 2.5 to 5 times higher than White youth, largely due to heavier policing in urban neighborhoods.
• Divergent Charging and Plea Outcomes: Research on juvenile and young-adult court processing showed that White defendants—who were statistically more likely to afford private attorneys and come from neighborhoods with diversion programs—were significantly more likely to have felony charges reduced to misdemeanors, receive probation without a formal conviction, or have records sealed. Conversely, Black defendants were more likely to be detained pretrial, which statistically increased the pressure to plead guilty quickly to felony charges just to be released from jail.
• Compounding Workplace Penalties: Pager’s audit research demonstrated that a criminal record reduced callbacks for White applicants by 50% (from 34% to 17%), but reduced callbacks for Black applicants by nearly 65% (from 14% to 5%). Notably, White applicants with a criminal record received slightly more callbacks (17%) than Black applicants without any criminal record at all (14%). [1, 2, 3, 4]

Because of these compounding disparities at the arrest, charging, and plea stages, the EEOC concluded that a past conviction was frequently an unreliable proxy for actual behavioral risk, leading the agency to recommend individualized assessments rather than automatic disqualifications. [1]