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EEOC Rescinds Long-Standing Enforcement Guidance on Employer Use of Arrest and Conviction Records

November 4, 2026 by Brunini Law

On Thursday, October 29, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) formally rescinded its nearly 15-year-old guidance that outlined employers’ legal obligations in their use of workers’ arrest and conviction records to make employment decisions.

Originally issued in April 2012, the now-rescinded enforcement guidance explained the interplay between employers’ legal obligations under Title VII of the Civil Rights Act and their approach toward workers’ arrest and conviction records. The EEOC’s vote, which was 2-1, was held the day prior to the announcement. The guidance’s rescission is effective right away.

The rescission does not restore policy statements superseded by the 2012 guidance, nor does it require employers to abandon any lawful practices they may have adopted in response to it.

Entitled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act,” the 2012 Enforcement Guidance indicated that an employer’s use of criminal histories could potentially violate Title VII by having either disparate treatment (i.e., intentional discrimination based on a protected characteristic) or a disparate impact (i.e., when a facially neutral policy disproportionately affects one or more protected groups), particularly against Black and Hispanic applicants and employees.

EEOC Chair Andrea Lucas said in a statement that rescission of the guidance “reaffirms the agency’s commitment to enforce Title VII” while at the same time remaining consistent with the Constitution and the limits Congress placed on the EEOC’s authority. “Rescinding 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,” Lucas said. “The EEOC will continue to vigorously enforce these protections in accordance with the law.”

The EEOC’s rescission does not impact the federal Fair Credit Reporting Act (“FCRA”), which imposes procedural and substantive requirements on employers using background checks obtained from third-party vendors.

Similarly, the rescission does not override state and local “ban-the-box” or background check restrictions governing the use of criminal history information, which would continue to be enforced by agencies other than the EEOC and/or private plaintiffs.

Additionally, disparate treatment allegations (e.g., evaluating or treating one applicant more harshly than another applicant based on the first applicant’s protected characteristic) will continue to apply.

For now, employers should maintain their existing lawful screening practices and confirm they comply with applicable state and local rules. 

Brunini’s Labor & Employment team is monitoring these events and will provide updates accordingly. Please feel free to contact us to discuss any questions or concerns.

Practice Attorneys

  • Christopher R. Fontan

Practice Groups

  • Labor and Employment
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