On April 25, 2012, the Equal Employment Opportunity Commission announced its much-anticipated new Enforcement Guidance on employers' use of criminal background information in making employment decisions. The new guidance came in a bit of a rush as the EEOC was about to lose its Democratic majority with the resignation of Commissioner Stuart Ishimaru, which becomes effective at the end of April.

The EEOC has long expressed concern that the use of criminal records in employment decisions can have a disparate impact based on race and national origin, potentially violating Title VII. Disparate impact claims rely on statistics to show that an otherwise neutral screening criterion has a disparate, negative impact on one or more protected classifications of applicants or employees. Higher arrest and conviction rates for certain minority males – particularly African-American and Hispanic males – are primarily the reason that the EEOC frowns on employers' use of criminal background information.