Law & regulation · · 6 min read
The EEOC rescinds its 2012 criminal history guidance
The federal guidance that shaped criminal-history screening for fourteen years is gone. The statute it interpreted is not, and neither is the state and local layer underneath it.
On 28 October 2026 the U.S. Equal Employment Opportunity Commission voted 2-1 to rescind its 2012 enforcement guidance on the consideration of arrest and conviction records in employment decisions. The Commission announced the vote the following day and said the rescission was effective immediately.
It is the most significant federal shift in criminal-history screening policy since the guidance was issued, and it is easy to read as a green light. It is not one. The rescission withdraws an enforcement position; it does not amend Title VII, does not repeal the Fair Credit Reporting Act, and does not displace the state and local fair chance laws that apply to most screening programs in the country. The practical question for an employer is therefore narrower than the headlines: what did the federal agency stop doing, and what still has to be done?
What the 2012 guidance did
The 2012 document, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, set out the Commission's view that a criminal-record exclusion could violate Title VII under either a disparate treatment or a disparate impact theory. It is the disparate impact theory that made the guidance consequential. A policy that excludes anyone with a conviction, without regard to the offense, its age or its relationship to the job, could be challenged because of its disproportionate effect, even without proof of intent.
The guidance did not make individualized assessment mandatory in every case. It said that a targeted screen plus an individualized assessment was the safer route, and it pointed to the factors courts had used sinceGreen v. Missouri Pacific Railroad: the nature and gravity of the offense, the time that has passed, and the nature of the job. It also drew a distinction between arrests and convictions that many employers still get wrong. An arrest is not a finding of guilt, and a policy that treats it as one is difficult to defend on job-relatedness grounds.
What the rescission does
It withdraws the guidance. The Commission's vote was 2-1, the rescission was effective immediately, and the EEOC described it as part of a broader shift away from disparate-impact enforcement. Chair Andrea Lucas said the vote "reaffirms the agency's commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC's authority."
The rescission does not reinstate the policy statements the 2012 guidance displaced, and it does not require an employer to abandon a practice it adopted while the guidance was in effect. Lucas also said the rescission "does not give employers license to engage in unlawful discrimination," and that Title VII continues to prohibit race and national-origin discrimination, including requirements that are proxies for intentional discrimination.
In practical terms, the Commission is signaling that it will pursue disparate treatment cases rather than disparate impact cases in this area. It is not signaling that criminal-history screens are immune from challenge. Private plaintiffs can still bring Title VII disparate-impact claims, and they can still argue that the rescission does not change the case law the guidance described. An employer that moves from an individualized process to a blanket exclusion has changed its exposure, not eliminated it.
What did not change
The Fair Credit Reporting Act is untouched. If the employer obtains a background report from a third-party consumer reporting agency, the standalone disclosure, the authorization, the pre-adverse action notice, the copy of the report, the summary of rights and the adverse action notice are all still required. The federal five-day waiting period that many programs use comes from FTC staff opinion letters rather than a statute, but the notice sequence itself is statutory. The FCRA compliance guide sets out the employer side of that sequence, and the adverse action articlecovers the two-notice architecture in detail.
State and local law is also untouched. California's Fair Chance Act, New York City's Fair Chance Act, the Illinois and Philadelphia ordinances and the growing list of jurisdictions with their own response periods and notice requirements all continue to apply. In most of the country, the binding rule on criminal-history screening was never the EEOC guidance; it was the state or city statute. The fair chance article explains the structure, and the compliance section carries the current position for each state.
Title VII itself is untouched. Intentional discrimination remains unlawful, and a policy that uses criminal history as a proxy for race or national origin remains exposed. The rescission changes the Commission's enforcement posture, not the statute.
What employers should review now
The wrong response is to treat the rescission as permission to adopt a blanket exclusion. That is the one change most likely to convert a defensible program into a test case. The more durable response is to keep the parts of the process that were doing real work and document why they are there.
- Keep the criteria job-related. A conviction should matter because of what it says about the job, not because it exists. The regulated-industries article sets out the mechanisms regulators actually use, which is a better guide than a generic severity table.
- Keep the individualized assessment where state or local law requires it. California, New York City and a growing number of jurisdictions require a written analysis before an adverse decision. The rescission does not reach those requirements.
- Audit the automation. A vendor rule that auto-rejects every record above a certain grade is a policy decision, whether or not anyone wrote it down. Check what the system does before the recruiter sees the file.
- Keep the FCRA sequence intact. The disclosure, the authorization, the pre-adverse action package and the adverse action notice are separate duties. A state fair chance notice does not substitute for the federal one, and combining them is permitted only if both sets of content are present.
- Document the reasoning. A matrix narrows what needs reasoning; it does not replace the reasoning. The screening program toolkit includes an adjudication matrix and an assessment worksheet precisely because the written record is what makes the process reviewable later.
- Train the people who make the call. The manager who says "we do not hire people with felonies" creates the disparate-treatment case the guidance never did.
The bottom line
The EEOC has withdrawn its 2012 view of how Title VII's disparate-impact theory applies to criminal records. That is a real change in federal enforcement policy, and employers should stop treating the guidance as a current statement of the Commission's priorities. It is not a change to the statute, the FCRA or the state and local laws that govern most screening decisions. The programs that were defensible last month are still defensible; a program built on a blanket exclusion was not made lawful by the vote.
Sources
- EEOC, Enforcement Guidance No. 915.002, Consideration of Arrest and Conviction Records in Employment Decisions (2012)
- Ogletree Deakins, "EEOC Rescinds Criminal Background Check Guidance" (30 October 2026)
- Staffing Industry Analysts, "EEOC to reduce focus on discrimination cases from criminal background checks" (4 November 2026)
- Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2
- Fair Credit Reporting Act, 15 U.S.C. §1681 et seq.
Published 8 November 2026. Nothing here is legal advice; see the terms of use.