Employers
The U.S. Equal Employment Opportunity Commission has rescinded its 2012 guidance on how employers may consider job applicants’ and workers’ arrest and conviction records, the agency announced Thursday, Oct. 29. The commission voted on Wednesday, Oct. 28, and the agency said the rescission took effect immediately.
The withdrawn document, formally the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, was approved at a commission meeting on April 25, 2012. For more than 14 years it served as the agency’s main statement of how it would evaluate criminal-background screening under federal anti-discrimination law.
What the agency said
In its announcement, the EEOC said the rescission does not restore the earlier policy statements that the 2012 guidance had replaced. It also said employers are not required to abandon any lawful practices they adopted in response to the guidance.
EEOC Chair Andrea Lucas said the move “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.” She added that rescinding the guidance “does not give employers license to engage in unlawful discrimination,” and that Title VII “continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.”
The agency’s release does not give the vote count. HR Dive reported that the commission voted 2-1, with Commissioner Kalpana Kotagal dissenting; HR Dive said she called the majority’s decision shortsighted in a statement posted on LinkedIn. The EEOC’s public record of commission votes, which lists final actions month by month, had been posted through September 2026 as of Friday and did not yet include the October vote.
The step was expected. Littler Mendelson attorneys James A. Paretti and Barry A. Hartstein wrote on Oct. 7 that the White House Office of Management and Budget had indicated on Oct. 6 that it had received a draft final rule from the EEOC to rescind the guidance.
What the 2012 guidance said
According to HR Dive’s summary, the 2012 guidance asked employers to weigh the nature and gravity of an offense, the time elapsed since the offense or the completion of a sentence, and the nature of the job held or sought. It also pointed to factors such as the number of offenses, employment history before and after the offense, and rehabilitation efforts, and reminded employers that an arrest alone does not establish that criminal conduct occurred.
The guidance rested on two legal theories under Title VII: disparate treatment, meaning a policy applied differently to people of different races or national origins, and disparate impact, meaning a neutral-looking policy that disproportionately excludes a protected group without adequate business justification. HR Dive reported that the EEOC has stepped back from disparate-impact enforcement.
What has not changed
Rescinding guidance does not change the statute. Title VII remains in force, and the EEOC’s own release says the agency “will continue to vigorously enforce these protections in accordance with the law.”
Paretti and Hartstein, writing before the vote, cautioned that employers should not conclude they may use arrest or conviction records “however they wish without fear of liability.” They wrote that a background policy applied more harshly to one protected group than another would still likely violate Title VII. They also noted that disparate-impact liability remains recognized by the U.S. Supreme Court, was codified by Congress in Title VII, and can still be pursued by private plaintiffs even if the EEOC does not bring such cases, and that it remains available under many state anti-discrimination laws.
For job seekers with records, the immediate change is to federal agency guidance, not to the law. Workers who believe a background-check decision was discriminatory can still file a charge with the EEOC, and state or local laws may provide separate protections where they apply. Employers, for their part, are left without the agency’s detailed framework, while the underlying legal exposure described by employment lawyers remains.
Sources
- U.S. Equal Employment Opportunity Commission, “EEOC Votes to Rescind Enforcement Guidance on Arrest and Conviction Records,” October 29, 2026. https://www.eeoc.gov/newsroom/eeoc-votes-rescind-enforcement-guidance-arrest-and-conviction-records
- HR Dive, “EEOC votes to rescind Obama-era conviction and arrest record guidance,” October 8, 2026, updated October 30, 2026. https://www.hrdive.com/news/eeoc-moves-to-rescind-conviction-and-arrest-record-guidance-from-2012/832553/
- Littler Mendelson, “EEOC Preparing to Repeal Guidance on Use of Arrest and Criminal Records,” October 7, 2026. https://www.littler.com/news-analysis/asap/eeoc-preparing-repeal-guidance-use-arrest-and-criminal-records
- U.S. Equal Employment Opportunity Commission, “Meeting of April 25, 2012 – Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964,” April 25, 2012. https://www.eeoc.gov/meetings/meeting-april-25-2012-enforcement-guidance-consideration-arrest-and-conviction-records
- U.S. Equal Employment Opportunity Commission, “Commission Votes,” accessed October 30, 2026. https://www.eeoc.gov/commission-votes
Featured photo: A TriMet bus displaying "TriMet Is Hiring" on its destination sign crosses the Broadway Bridge in Portland, Oregon, June 11, 2019. Representative image; TriMet is not connected to the EEOC action. Photo: Steve Morgan, via Wikimedia Commons (CC BY-SA 4.0). Cropped from the original.
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