In a significant decision, on October 28, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Commission”) voted 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 of 1964 (the “Guidance”). The rescission reflects the EEOC’s broader shift away from pursuing disparate impact-based claims of race and national origin discrimination.
The Guidance
The Guidance emphasized the EEOC’s view that an employer’s use of criminal history could violate Title VII in two ways: (1) disparate treatment, where an employer deliberately applies its criminal record standards differently to excuse one individual’s criminal history while taking adverse action against a similarly situated individual of a different race or national origin without a legitimate business reason; and (2) disparate impact, where a facially neutral screening policy disproportionately excludes members of a protected group and is not job related and consistent with business necessity. Relying on national arrest and incarceration data, the EEOC recognized that broad criminal record exclusions tended to disproportionately affect Black and Hispanic applicants.
To help employers implement lawful policies, the Guidance recommended a “targeted screen” that focused on three relevant factors: (1) the nature and gravity of the offense; (2) the time elapsed since the offense or completion of the sentence; and (3) the nature of the job. The Guidance also encouraged employers to conduct individualized assessments giving applicants a chance to explain their records, cautioned that an arrest without conviction does not prove that misconduct occurred, and discouraged blanket “no record” policies.
The Rescission
With its October 28 vote, the EEOC withdrew the Guidance in its entirety. This rescission is consistent with a broader federal retreat from disparate impact enforcement. In April 2025, President Trump issued Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy,” directing federal agencies, including the EEOC, to deprioritize enforcement of statutes and regulations to the extent they rely on disparate impact theories of liability. At this point, no replacement guidance has been announced.
Practical Takeaways
Despite the EEOC’s rescission, Title VII and its discrimination prohibitions remain in effect. EEOC Chair, Andrea Lucas, affirmed in the Commission’s October 29 press release that “[r]escinding this guidance does not give employers license to engage in unlawful discrimination – Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.” Importantly, the relevant factors embedded in the Guidance were developed from preexisting case law, so courts are likely to continue weighing offense severity, recency, and job relevance in determining whether a criminal history policy is a proxy for discrimination.
Additionally, state and local “ban-the-box” and fair chance laws continue to restrict when employers may ask about criminal records and, in many jurisdictions, require individualized assessments, written notices, and waiting periods before an adverse decision is made. Employers that use third-party background check vendors must also continue to comply with the Fair Credit Reporting Act’s (“FCRA”) disclosure, authorization, and pre-adverse and adverse action notice requirements before taking adverse action based on an applicant’s criminal history.
Even after the rescission, employers should:
- Continue conducting individualized assessments that consider the nature and gravity of the offense, the time elapsed, and the nature of the job, before taking adverse action based on an individual’s criminal history.
- Apply criminal history standards consistently and train hiring managers to do the same.
- Document the job-related reasons for each adverse employment decision.
- Avoid blanket “no criminal history” exclusions and arrest-only decisions, which remain high-risk practices.
- Ensure compliance with FCRA and with state and local fair chance laws in every jurisdiction where you recruit and hire.
Poyner Spruill’s employment attorneys are monitoring developments at the EEOC and will provide updates as they emerge. If you need assistance reviewing hiring and disciplinary policies as they relate to applicant and employee criminal history, please contact a member of our Employment team.
