EEOC Rescinds Criminal History Guidance: What Employers Need to Know

On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) announced its decision to rescind 2012 enforcement guidance addressing employers’ use of arrest and conviction records in employment decisions. The rescission took effect immediately.

Although the decision represents a shift in the EEOC’s enforcement approach, it does not change employers’ obligations under federal anti-discrimination laws or eliminate potential liability for discriminatory hiring practices.

What Did the EEOC’s 2012 Guidance Require?

The EEOC’s 2012 guidance explained how employers’ consideration of criminal history could violate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin.

Although the guidance was not legally binding, it encouraged employers to avoid blanket exclusions based on criminal history and instead evaluate whether an applicant’s criminal record was relevant to the position. Specifically, the guidance recommended considering:

• The nature and seriousness of the offense;
• The amount of time that has passed since the offense or completion of the sentence; and
• The nature of the job being sought.

The guidance also recommended individualized assessments in appropriate circumstances before excluding applicants based on criminal history.

What Does the EEOC’s Rescission Mean for Employers?

The rescission removes the EEOC’s longstanding guidance on evaluating criminal history in employment decisions. However, it does not eliminate employers’ obligations under Title VII.

Employers remain prohibited from treating applicants or employees differently based on protected characteristics. Additionally, employers may still face liability under a disparate impact theory when a seemingly neutral hiring policy disproportionately excludes members of a protected group and cannot be justified as job-related and consistent with business necessity.

Although the current administration has deprioritized enforcement of disparate impact discrimination, the theory remains recognized under federal law and may still serve as the basis for private lawsuits.

What Should Employers Do Now?

Employers should not interpret the EEOC’s decision as permission to automatically disqualify applicants based on criminal history or abandon existing background screening procedures.

Instead, employers should continue to:

• Review criminal background screening policies to ensure exclusions are appropriate and related to legitimate business needs.
• Apply screening standards consistently to avoid discriminatory treatment of applicants or employees.
• Consider applicable federal, state, and local laws, including the Fair Credit Reporting Act and state or local restrictions on criminal history inquiries.

The EEOC’s rescission provides an opportunity for employers to review their background screening practices, but it does not eliminate the legal risks associated with criminal history-based employment decisions.

If you have questions about how the rescission may affect your hiring practices or background screening policies, please contact a member of BrownWinick’s Labor & Employment team.