EEOC Rescinds Its Criminal History Guidance: Here’s What Employers Need to Know

Seyfarth Synopsis: On October 29, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the rescission of its long-standing 2012 enforcement guidance addressing employers’ use of arrest and conviction records under Title VII. The announcement marks a notable shift in federal enforcement policy, but for many employers, the practical impact may be less significant than the headline suggests.

That is because the rescission does not eliminate the broader web of laws governing employers’ use of criminal-history information. Employers operating in jurisdictions with “ban-the-box,” fair chance, clean slate, background check, and other criminal-history laws must continue to comply with those requirements regardless of the EEOC’s change in position. And, as the EEOC itself emphasized, Title VII continues to prohibit unlawful discrimination based on multiple protected categories including race or national origin.

What Changed?

The EEOC issued its criminal-history enforcement guidance in April 2012. As Seyfarth reported at this time, this guidance anticipated an increased use of disparate treatment and impact theories where an employer considered arrest and conviction records.

For more than a decade, the guidance provided employers with a federal framework for evaluating criminal-history screening practices. Among other things, it addressed the potential risks associated with blanket criminal-history exclusions and discussed that employers should consider the nature and gravity of an offense, the amount of time that had passed, and the specific duties of a position at issue before making any employment decisions based on criminal history.

Now, the EEOC has rescinded that guidance, effective immediately, reflecting a broader shift away from enforcement of disparate impact claims.

But the agency was equally clear about something employers should not overlook: rescission of the guidance does not give employers license to discriminate based on race or national origin. Title VII remains the law, and the EEOC has stated that it will continue enforcing those protections. “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,” EEOC Chair Andrea Lucas said.

Should Employers Change Their Background Screening Programs?

Not necessarily.

The EEOC specifically noted that its rescission does not require employers to abandon otherwise lawful practices they adopted in response to the 2012 guidance. 

That makes an immediate overhaul potentially unnecessary, particularly for multi-state/multi-jurisdictional employers whose existing procedures are designed not only around federal guidance but also around state and local requirements.

Instead, employers considering changes should first evaluate why their existing procedures are in place. A process originally developed with the EEOC guidance in mind may now also serve to satisfy, or help address, independent legal or regulatory requirements imposed by jurisdictions in which the employer operates.

For multi-jurisdictional employers, simplifying a process in response to the new federal EEOC guidance rescission could create unintended compliance problems elsewhere.

Practical Takeaways for Employers

The practical message is one of caution rather than immediate change.

First, do not assume the rescission creates a free pass for criminal-history screening. Title VII remains in effect, and the EEOC has expressly stated that unlawful discrimination based on race or national origin remains prohibited.

Second, take inventory of applicable state and local requirements. Fair chance and ban-the-box laws remain a significant part of the compliance landscape, particularly for employers operating in one or more of the 37 states and local jurisdictions that enacted “Ban the Box” hiring laws.

Third, do not dismantle existing procedures simply because the federal guidance is gone. Determine whether those procedures address other federal, state, or local obligations before changing them.

The Bottom Line

The rescission of the EEOC’s 2012 criminal-history guidance is a significant change in federal enforcement policy, but it may not dramatically change the day-to-day compliance obligations of many employers. The federal guidance may be gone, but state and local levels continue to enforce fair chance laws and ban-the-box requirements, and Title VII restrictions still remain.