EEOC Rescinds Criminal History Guidance: What Does the Change Mean for Employers?
On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its 2012 guidance on the use of arrest and conviction records in employment decisions, effective immediately. For more than a decade, the guidance had served as a reference for employers evaluating criminal history under Title VII. The rescission withdraws the EEOC’s 2012 interpretation and recommendations regarding criminal history; it does not amend Title VII.
Importantly, employers are not required to abandon lawful screening practices they adopted in response to the guidance, and the older policy statements the guidance had replaced are not being reinstated. The EEOC has not announced replacement enforcement guidance on arrest and conviction records.
Why the 2012 Guidance Mattered
The guidance addressed how criminal history screening could implicate Title VII. While having a criminal history is not a protected characteristic under Title VII, the EEOC warned that decisions made based on such history could disproportionately affect groups protected under Title VII, particularly based on race or national origin, and thus result in discrimination. Even a policy that was applied consistently to all applicants could raise concerns if it disproportionately prevented people in a protected group from being hired. In other words, applying the same screening rule to every applicant did not, by itself, shield the rule from Title VII scrutiny.
The guidance recommended that employers generally avoid asking about convictions on job applications and, when they did inquire, limit questions to convictions that might justify exclusion as job related and consistent with business necessity. It encouraged employers to use a targeted screen considering the nature and gravity of the offense, the time elapsed, and the nature of the job. It also recommended notifying an applicant who was screened out because of a conviction, providing that applicant with an opportunity to explain why the exclusionary policy should not apply and considering that explanation before making a final decision. Still, the guidance acknowledged that an individualized assessment was not required under Title VII in every circumstance. Although the guidance itself did not have the force of law, it influenced the EEOC’s enforcement decisions.
Under the guidance, arrest records received separate attention. It correctly noted that, while an arrest alone does not establish that a person committed an offense, the underlying conduct could be relevant to determining if an individual was unfit for the particular position. The guidance called for a fact-based analysis to determine if the conduct supported excluding the candidate as job-related and consistent with business necessity.
The Laws That Still Apply
Although those recommendations are no longer operative EEOC guidance, the underlying statute remains in effect. Title VII still prohibits unlawful discrimination when employers consider arrest and conviction records in hiring and other employment decisions. Indeed, in announcing the decision, EEOC Chair Andrea Lucas said the agency would continue to enforce protections against discrimination based on race or national origin, including employment requirements used as proxies for intentional discrimination.
Although the EEOC has indicated that it will not be focusing on disparate impact claims, Title VII still allows claims challenging employment practices that have a disparate impact on protected groups. A claimant must identify a particular criminal history screening practice and show that it caused the disparity; different outcomes do not, by themselves, establish a violation. The employer can defend the practice by demonstrating that it is job-related for the position in question and consistent with business necessity. Even then, a claimant may prevail by showing that the employer refused to adopt an available, less discriminatory alternative that would have effectively served the employer’s legitimate goals. Although the 2012 guidance is no longer in effect, some of its recommendations, including considering the nature of the offense, the time elapsed, and the duties of the position, can help employers assess their screening policies.
The Fair Credit Reporting Act imposes separate requirements when an employer obtains a background report, including conviction and arrest information, from a consumer reporting agency. These generally include a stand-alone disclosure and written authorization before obtaining the report. Before taking adverse action based on information in the report, the employer must provide the applicant or employee a notice that includes a copy of the report and a summary of rights. Once the employer takes action, it must provide further notice. The EEOC’s rescission has no effect on those requirements.
Other federal, state, and local laws may also impose additional requirements on criminal history screening, including limiting when employers may ask about or consider criminal records or restricting employment in certain positions based on specified convictions. In effect, this could mean that an employer’s screening practice will not be the same if used across multiple offices in different locations. In other words, employers need to consider not just the position requirements, but where the position is located as well when determining their criminal history screening policies.
In sum, while the EEOC’s rescission removes a familiar source of guidance, it does not change the employer’s obligations under Title VII and other applicable federal, state, and local laws. Employers should still evaluate how each screening policy relates to the positions it covers and consider whether an individualized assessment is appropriate or required by applicable law.
This article is for general informational purposes only and does not constitute legal advice. Labor and employment law is fact-specific, and readers should consult qualified legal counsel regarding their individual circumstances.
Laura Emadi helps employers address workplace challenges through practical counseling and litigation defense. A director in Fennemore’s San Antonio office, she draws on her background in employment and business litigation to guide clients through day-to-day personnel decisions and defend against discrimination and retaliation claims. She can be reached at lemadi@fennemorelaw.com.
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