EEOC Rescinds Criminal History Guidance: What Employers Need to Know

Key Takeaways

• The Equal Employment Opportunity Commission (EEOC) has rescinded its 2012 enforcement guidance addressing employers’ use of arrest and conviction records in employment decisions, effective immediately.
• The rescission reflects the EEOC’s broader shift away from disparate impact enforcement, but does not eliminate employers’ obligations under Title VII or other applicable laws.
• Employers should continue evaluating their criminal background screening practices for compliance with federal, state and local requirements before making changes.

On Oct. 28, 2026, the EEOC voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act. The rescission, announced Oct. 29, took effect immediately and marks another significant shift in the agency’s approach to employment discrimination enforcement.

Although the decision removes longstanding federal guidance concerning criminal background checks, employers should not interpret the rescission as eliminating legal risks associated with using criminal history in hiring and other employment decisions.

What Did the 2012 Guidance Recommend?

The 2012 guidance outlined the EEOC’s interpretation of how employers’ consideration of arrest and conviction records could implicate Title VII, particularly where criminal background screening policies disproportionately excluded applicants based on race or national origin.

The guidance emphasized that blanket exclusions based on criminal history could raise disparate impact concerns, even where employers applied the same screening criteria to all applicants.

To reduce potential liability, the EEOC recommended that employers evaluate three factors when considering criminal convictions: (1) the nature and gravity of the offense; (2) the time elapsed since the offense or completion of the sentence; and (3) the nature of the position sought. The guidance also encouraged individualized assessments that allowed applicants to provide additional information before an adverse employment decision.

Although the guidance was not itself binding law, it significantly influenced employers’ background screening policies and compliance practices.

Why Is the EEOC Rescinding the Guidance?

The rescission is consistent with the EEOC’s broader shift away from expansive disparate impact theories and toward enforcement focused on intentional discrimination.

As discussed in prior blog posts, the agency’s 2026 National Enforcement Plan places greater emphasis on disparate treatment claims.

Similarly, the Department of Justice’s Office of Legal Counsel issued an opinion concluding that the EEOC’s interpretation of disparate impact liability under Title VII is unconstitutional, as discussed here.

In announcing the rescission, EEOC Chair Andrea Lucas emphasized that the decision does not authorize unlawful discrimination. Title VII continues to prohibit discrimination based on race or national origin, including employment requirements used as proxies for intentional discrimination.

What Does This Mean for Employers?

Importantly, rescinding the guidance does not change Title VII itself. Employers may still face claims alleging intentional discrimination or disparate impact arising from criminal background screening policies, including lawsuits brought by private plaintiffs.

Additionally, the rescission does not affect obligations under the Fair Credit Reporting Act (FCRA), which imposes separate requirements when employers obtain and use background reports from third-party consumer reporting agencies.

State and local laws also remain relevant. Many jurisdictions have adopted fair chance or ban the box laws restricting when employers may inquire about criminal history, what information they may consider and the procedures required before rejecting applicants based on criminal records.

What Employers Should Do Now

Although the EEOC has withdrawn its 2012 guidance, employers are not required to abandon lawful background screening practices developed in response to it. Employers should consider:

• Reviewing existing screening policies to ensure criminal history exclusions are appropriate for the positions involved;
• Applying background screening standards consistently to minimize disparate treatment risks;
• Evaluating state and local requirements, including restrictions on criminal history inquiries and individualized assessment obligations; and
• Confirming FCRA compliance, particularly applicable disclosure, authorization and adverse action procedures.

The rescission provides employers an opportunity to reassess their background screening practices, but it should not be viewed as a blanket authorization to impose categorical criminal history exclusions.

As federal enforcement priorities continue to evolve, employers should carefully evaluate any proposed changes to their hiring practices against their remaining legal obligations.

For questions about the EEOC’s rescission or compliance with criminal background screening requirements, please contact your Polsinelli Labor and Employment attorney.