What Employers Should Know About the EEOC’s Rescission of Criminal History Guidance

On October 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it had voted the previous day 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 is effective immediately.

The announcement changes the agency’s guidance, but employers should not interpret it as permission to disregard employment discrimination laws or other requirements governing criminal background checks.‍

What Changed‍

The EEOC has withdrawn the 2012 guidance addressing employers’ consideration of arrest and conviction records. The agency expressly stated that its action does not reinstate policy statements superseded by that guidance or require employers to abandon lawful practices adopted in response to it.

The EEOC also emphasized that Title VII continues to prohibit discrimination based on race or national origin, including employment requirements used as proxies for intentional discrimination. The agency stated that it will continue enforcing those protections.‍

What Has Not Changed‍

Rescinding agency guidance does not amend Title VII or eliminate obligations imposed by other federal, state, or local laws.

Title VII’s statutory framework continues to address both intentional discrimination and disparate impact. Although the rescission comes amid a broader shift in federal enforcement policy concerning disparate-impact liability, Title VII continues to recognize disparate-impact claims. A screening policy that appears neutral may still face a disparate-impact challenge if it disproportionately excludes a protected group and the employer cannot establish the required job-relatedness and business necessity. Employers should therefore avoid assuming that consistent application alone makes a criminal history policy lawful.

Other background screening requirements also remain relevant:

• ‍State and local restrictions. Depending on the jurisdiction, fair chance and “ban-the-box” laws may restrict when employers can request criminal history information, which records they may consider, and the process required before denying employment. For example, New York City generally requires covered employers to wait until after a conditional offer before considering criminal history and to follow an assessment and notice process before taking adverse action, subject to exceptions.‍
• Federal background report requirements. When employers obtain background reports through a consumer reporting agency, the Fair Credit Reporting Act generally requires disclosure and written authorization. Before taking adverse action based on a report, employers generally must provide a copy of the report and a summary of rights, followed by a separate notice if adverse action is taken.

Steps Employers Should Consider‍

Employers should use this development as an opportunity to review their screening practices with counsel rather than automatically broaden exclusions or discontinue existing safeguards.

A review should include:

• Written policies and hiring materials. Identify references to the rescinded guidance and determine whether revisions are appropriate under applicable law.‍
• Screening criteria. Evaluate whether exclusions relate to the duties and risks of the position and whether blanket restrictions create unnecessary exposure.‍
• Jurisdiction-specific procedures. Confirm applicable requirements concerning inquiry timing, individualized assessments, notices, and opportunities to respond.‍
• Training and vendor coordination. Ensure that hiring managers, human resources personnel, and screening providers understand the employer’s procedures and do not treat the rescission as blanket authorization to reject applicants with criminal records.

Lawful practices adopted following the 2012 guidance may remain useful and, in some jurisdictions, may be independently required. Any changes should account for the employer’s locations, positions, and applicable legal obligations.

For more information about the EEOC’s announcement or assistance reviewing criminal background screening policies and hiring procedures, contact Chartwell’s Labor & Employment team.