EEOC Aims to Rescind Guidance on the Use of Arrest and Criminal Records in Employment Decisions

The Equal Employment Opportunity Commission (EEOC) is moving forward with efforts to rescind the agency’s previously published guidance around how arrest and conviction records are treated regarding employment decisions. On October 6, 2026, the EEOC sent a draft final rule to the Office of Management and Budget (OMB) that, if finalized, would rescind the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. The EEOC announced a public meeting to vote on the proposal for October 30, 2026 at 1 pm EST.

The guidance was issued in 2012 in response to concerns that excluding applicants due to criminal records disproportionately affected applicants based on race or national origin. The guidance document addressed both disparate treatment and disparate impact stemming from the use of criminal records in employment decisions. The EEOC wrote that employers could be liable for disparate treatment claims under Title VII if evidence showed that they treated applicants with the same criminal records differently due to their race. When it comes to disparate impact, the agency wrote that there could be disparate impact liability under Title VII if evidence showed that an employer’s criminal record screening policy or practice disproportionately screens out a protected group, and the employer was not able to demonstrate that the policy or practice job related and consistent with business necessity. The guidance included best practices for employers on how to consider criminal history in employment decisions.

While details of the final rule were not included in the Unified Agenda of Federal Regulatory and Deregulatory Actions, the rescission of the guidance aligns with the EEOC’s current view of disparate impact claims. After the Department of Justice issued an opinion in June 2026 concluding that the agency’s interpretation of Title VII disparate impact liability was unconstitutional, the EEOC has deprioritized investigations of disparate impact claims.

However, this does not mean that employers can use arrest or criminal conviction records without any risk of liability. The EEOC has given no signals that they intend to stop investigating charges of disparate treatment (e.g., an employer applying a criminal background policy more often against Black applicants than White applicants). Additionally, disparate impact claims can still be brought by individual plaintiffs under Title VII. The rescission of the guidance could, however, impact how employers defend against these private lawsuits – potentially arguing that without the EEOC’s guidance related to the use of arrest and criminal records a Title VII disparate impact claim is weakened.

Rescission of the guidance is unlikely to affect the multitude of state and local laws related to the use of background checks, arrest records, and criminal records by employers as these are enforced by state agencies or brought by private plaintiffs. In fact, some states have signaled that they are looking to fill the gap left as a result of EEOC pulling back on disparate impact enforcement. Rescission of the guidance will also not change the requirements related to background checks within the Fair Credit Reporting Act.

Employers should monitor the progress of this rule and keep in mind that even if the EEOC’s 2012 guidance is rescinded, federal and state laws remain in place. Government agency enforcement priorities related to disparate impact might change, but Title VII remains, and claims can be brought by individual plaintiffs as well as states. Employers should review applicable state and local laws, as well as audit their policies and procedures related to background checks and the use of criminal history in employment decisions to ensure they are consistent and job-related.