On October 28, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Agency”) voted to rescind its long-standing 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (the “Guidance”). The Guidance, which took effect immediately, marks a shift in how the Agency approaches background checks and disparate impact claims.

What was the 2012 Guidance?

Issued under the Obama Administration, the Guidance served as a compliance playbook for over a decade. It warned employers that blanket exclusions of applicants with criminal records could violate Title VII of the Civil Rights Act (“Title VII”) if those policies disproportionately impacted protected groups (such as Black and Hispanic job seekers) without a sufficient business necessity.

Emanating from Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975), which held that a railroad company’s bar on hiring anyone convicted of any crime other than a minor traffic offense was discriminatory under Title VII, the Guidance encouraged employers to conduct individualized assessments before taking employment action based on one’s criminal record, weighing factors such as:

  • The nature and seriousness of the offense;
  • The amount of time that elapsed since the conviction or completion of sentence;
  • The specific duties and responsibilities of the job in question; and
  • Whether the event was an arrest versus a conviction (noting that an arrest alone does not prove criminal conduct).
Rescission of the 2012 GuidancE

The rescission follows broader federal policy shifts, including a 2025 executive order, Restoring Equality of Opportunity and Meritocracy, aimed at limiting disparate impact liability across federal agencies.

EEOC Chair Andrea Lucas noted in the announcement that rescinding the Guidance reaffirms the Agency’s commitment to enforce Title VII consistent with the Constitution and statutory limits. The Agency is turning away from prioritizing broad disparate impact theories regarding criminal history inquiries.

What Employers Can Expect Going Forward

1. The law has not changed.
The rescission of an administrative guidance document does not amend Title VII. Intentional discrimination (disparate treatment) remains strictly illegal. As Chairperson Lucas emphasized, the EEOC’s rescission of the Guidance does not give employers license to engage in unlawful discrimination, and the EEOC will still pursue claims where rules act as proxies for intentional bias.


2. Employers do not have to change current practices.
Employers are not required to abandon lawful screening processes or individualized reviews they have already put in place. Employers are strongly advised not to drop best practices that have been developed over years under the Guidance.


3. The Guidance does not change state and local Fair Chance laws.
Federal guidance is only one piece of the puzzle. Numerous state and municipal laws, such as New Jersey’s and New York’s “Ban-the-Box,” and Fair Chance laws, and various major cities’ ordinances still mandate individualized reviews and/or restrict when criminal history can be inquired of during the hiring process. Violations of these state and local laws can still result in heavy penalties, regardless of what the EEOC does at the federal level.


4. Fair Credit Reporting Act (FCRA) requirements remain.
The FCRA and its pre-adverse and adverse action notice requirements still apply whenever employers use a third-party background check vendor to screen candidates. Practically, this means that employers that learn of an applicant’s criminal background during a background check remain bound to follow the FCRA’s (and state law equivalents’) procedural requirements in carrying through on the hiring process.

Key Take Aways For Employers

Maintain individualized assessments: evaluating the nature and seriousness of the offense (and whether the offense resulted in a conviction or arrest), whether the offense relates to specific job duties, and the length of time that has elapsed since the conviction or completion of the sentence, remain the safest operational standards to apply.

For further assistance regarding background check practices and policies, Cole Schotz attorneys are available to provide guidance and answer employers’ questions.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication. No aspect of this advertisement has been approved by the highest court in any state.