EEOC Rescinds Long-Standing Criminal History Guidance

On October 28, 2026, the Equal Employment Opportunity Commission (EEOC)  rescinded its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, which explained how criminal history background screening could violate Title VII by disproportionately excluding applicants based on race or national origin. The recission of the Enforcement Guidance, however, may not have much of a practical impact for employers.

Key Takeaways

The guidance is gone, but liability is not. Title VII still bars race and national origin discrimination in hiring, including decisions based on criminal records. The EEOC intends to keep enforcing these protections. But it will focus more on intentional discrimination (disparate treatment) claims, rather than disparate impact claims, which concern a policy (e.g., a background check matrix) that adversely affects a protected group.

Blanket policies still carry risk. Automatically rejecting applicants with a criminal record can still expose employers to potential discrimination claims. Check applicant-tracking and vendor settings for blanket exclusions you never deliberately adopted. The best practice is still to conduct an individualized inquiry into any negative background check results, examining factors such as how long ago the crime occurred, the applicant’s age at the time, the type of crime, and the nature of the position for which the applicant is applying.

An arrest is not a conviction. If an applicant’s record shows only an arrest, not a conviction, proceed with caution. An arrest does not prove criminal conduct, but arrests can be considered in certain circumstances (which somewhat depends on the state in which the applicant lives/works).

Other laws are unchanged. State and local fair-chance and ban-the-box laws, which often limit when employers may ask about criminal history and which records they may consider, still apply, as do the Fair Credit Reporting Act’s (FCRA) disclosure, authorization, and adverse-action notice requirements for third-party background checks.

This alert is for informational purposes only and is not legal advice. Employers should consult their employment law counsel with questions regarding criminal-history screening policies and hiring practices.