EEOC Compliance Update: Arrest and Conviction Records Guidance Rescinded

Author: Vince Pascarella, General Counsel

Key Takeaways

• The EEOC has rescinded its 2012 guidance on the use of arrest and conviction records in employment decisions, effective immediately.
• While federal enforcement priorities may be shifting, Title VII of the Civil Rights Act and other legal and regulatory compliance requirements remain in place.
• Employers do not need to overhaul their screening programs, but they should review policies, ensure hiring criteria remain job-related, and stay aligned with potentially evolving state and local requirements.

The Equal Employment Opportunity Commission (EEOC) recently voted to rescind its 2012 guidance on the use of arrest and conviction records in employment decisions, marking another significant shift in the federal government's approach to workplace compliance and disparate impact enforcement.

Does this mean employers can relax their criminal background screening policies? Not exactly.

While the guidance is gone, many of the underlying compliance considerations remain.

A Quick Refresher: Why This Matters

The rescinded guidance was primarily focused on disparate impact.

Disparate impact occurs when a seemingly neutral employment policy disproportionately affects members of a protected class. In the context of background screening, this often centers on criminal history policies that potentially disqualify certain candidates.

For more than a decade, the EEOC's 2012 guidance helped employers comply with Title VII and related case law to avoid blanket exclusions based on criminal history and instead consider factors such as:

• Nature and gravity of the offense
• Age at the time of the offense
• Time elapsed since the offence
• Job-relatedness of the offense
• Other relevant factors

For many employers, these principles became standard practice because they helped support more consistent, job-related, and legally defensible hiring decisions.

Why Did the EEOC Rescind the Guidance?

The decision is part of a broader shift in federal enforcement priorities under the Trump administration.

Over the past two years, both the EEOC and Department of Justice (DOJ) have signaled a move away from disparate impact as a primary enforcement theory. In June 2026, the DOJ's Office of Legal Counsel issued a memorandum asserting that disparate impact liability under Title VII of the Civil Rights Act of 1964 is unconstitutional.

Against that backdrop, the EEOC's decision to rescind its 2012 arrest and conviction records guidance wasn’t completely unexpected. Because the guidance was heavily rooted in disparate impact principles, many viewed its removal as a likely continuation of the federal government's evolving approach to enforcement.

What Hasn't Changed

It’s important to separate enforcement priorities from the law itself. The guidance has changed, but the underlying laws have not. Disparate impact discrimination is still prohibited by:

• The U.S. Constitution
• Title VII of the Civil Rights Act
• State and local laws and regulations
• Multiple SCOTUS decisions
• State and federal court decisions interpreting state and federal laws

In addition:

• Employers may still face disparate impact discrimination claims related to hiring decisions
• Disparate treatment discrimination claims are still being enforced by the EEOC
• State and local fair chance hiring and ban-the-box laws remain in effect
• Fair Credit Reporting Act (FCRA) requirements continue to apply when using a consumer reporting agency (CRA) for employment background checks

The enforcement conversation may have changed (for now), but employers must still maintain fair, consistent, and compliant hiring practices.

What Employers Should Do Now

The good news is that most employers do not need to make sweeping changes.

Instead, use recent changes as an opportunity to evaluate whether your current approach is still aligned with business needs and compliance requirements:

1. Review Your Criminal History Policy: Identify references to the rescinded guidance and determine whether updates are needed.

2. Focus on Job Relevance: Ensure criminal record screening criteria are connected to the responsibilities and risks of the role.

3. Check State and Local Requirements: Fair chance hiring and ban-the-box requirements remain active across many jurisdictions.

4. Train Hiring Managers: Make sure teams understand that the rescission does not eliminate discrimination risks or other compliance obligations.

5. Review Your Background Screening Strategy: Evaluate whether your background screening program and screening partner provide the consistency, documentation, and flexibility needed to adapt as compliance expectations continue to evolve.

Compliance Is Still the Priority

The EEOC's decision to rescind its arrest and conviction records guidance is certainly noteworthy, but it shouldn't trigger panic or drastic policy changes.

For most employers, the smartest path forward is an updated version of the same one that existed before the announcement: maintain job-related screening practices, apply policies consistently, and stay informed as federal, state, and local requirements continue to evolve.

Disclaimer: This content is provided for informational and educational purposes only and is not intended to constitute legal advice. It reflects general industry insights and best practices to support discussion and awareness. Organizations should consult with their legal, compliance, or other professional advisors before making changes to their background screening programs to ensure compliance with applicable laws and regulations.