EEOC Rescinds Criminal Background Check Hiring Guidance
The U.S. Equal Employment Opportunity Commission (EEOC) has rescinded its 2012 enforcement guidance on employers’ use of arrest and conviction records in hiring, a move that signals a shift in federal civil rights enforcement but does not eliminate employers’ legal obligations when conducting background checks.
The commission voted behind closed doors to repeal the guidance, announcing the decision Oct. 29. The rescission is effective immediately and follows a broader effort by the Trump administration to reduce the role of disparate impact theory in federal discrimination enforcement.
For employers, the practical implications may be limited, as federal, state, and local laws governing criminal background checks remain in force.
“The message it sends is that the EEOC is not going to be bringing these cases and focusing on disparate impact,” said Jim Paretti, an attorney in the Washington, D.C., office of Littler. “That is not surprising, and it is how they have already been operating.”
A Shift in Federal Enforcement
The 2012 guidance addressed two ways criminal background screening can implicate Title VII of the Civil Rights Act of 1964: disparate treatment and disparate impact.
Disparate treatment occurs when an employer treats applicants differently because of a protected characteristic. For example, an employer could violate Title VII by disqualifying Black applicants for a particular conviction while allowing White applicants with the same conviction to proceed.
Disparate impact, by contrast, concerns facially neutral employment policies that disproportionately disadvantage members of a protected group. A blanket policy excluding everyone with a criminal record, for instance, could screen out applicants from certain racial groups at higher rates.
Under the 2012 guidance, employers could defend a criminal-record screening policy that produced a disparate impact by demonstrating that it was job-related and consistent with business necessity. Applicants could still challenge the policy by identifying an alternative employment practice that would serve the employer’s legitimate interests.
The guidance also encouraged employers to assess criminal records individually, considering the nature and seriousness of an offense, the time elapsed since the offense or completion of a sentence, and the nature of the job.
Rachel Rubino, SHRM-SCP, managing consultant of people insights at Berkshire, based in Columbia, Md., said the guidance was designed to address concerns that excluding applicants because of criminal records disproportionately affected people based on race or national origin.
It also offered employers best practices for evaluating criminal history rather than automatically rejecting candidates based on any record.
The repeal aligns with the commission’s changing enforcement priorities. Under EEOC Chair Andrea Lucas, the agency has moved away from pursuing cases based solely on unintentional discrimination claims. The Department of Justice also issued a June 2026 opinion asserting that the EEOC’s previous interpretation of disparate impact liability under Title VII was unconstitutional.
Lucas emphasized that the decision does not authorize discrimination.
“Rescinding this guidance does not give employers license to engage in unlawful discrimination,” she said in a statement. “Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.”
Limited Impact for Employers
Despite the policy shift, employment attorneys and HR experts caution against interpreting the rescission as permission to adopt unrestricted criminal background screening practices.
Paretti noted that disparate impact is still a theory under Title VII and has been recognized by the U.S. Supreme Court. State and local laws also continue to provide avenues for challenging discriminatory screening policies.
“Do not think that the repeal of the guidance means that you can use criminal or arrest conviction records with no limitations or fear of consequence,” Paretti said. “While the EEOC may not bring these cases, the plaintiffs’ bars are under no such obligation.”
The rescission could influence how employers defend those lawsuits, including arguments about the relevance of the former guidance, but it does not itself eliminate the underlying statutory provisions.
Scott Paler, an attorney in the Madison, Wis., office of DeWitt, described the decision as largely symbolic.
“The real ‘fair chance’ battleground has moved to the state and local level,” Paler said, noting that numerous jurisdictions have enacted laws governing employers’ consideration of arrest and conviction records. “Those laws will remain in place notwithstanding the EEOC’s change in position.”
Many of these laws impose specific requirements on when employers can conduct criminal background checks, which records they can consider, how they evaluate applicants, and what procedures they must follow before making adverse decisions.
Requirements can vary substantially across jurisdictions, creating challenges for employers operating across state lines, Paler said. “California and Washington, for example, have established rules that can make criminal-history screening very complex,” he said.
The recission also does not change employers’ obligations under the Fair Credit Reporting Act when they use third-party consumer reporting agencies to conduct background checks.
For HR executives, the most prudent response is to review existing screening policies rather than make immediate changes based solely on the EEOC’s decision.
Organizations should continue to evaluate whether criminal records are relevant to the positions being filled. A conviction that poses a legitimate concern for one role may have little bearing on another.
Paretti illustrated the importance of context by contrasting an old marijuana-possession conviction involving an applicant for a grocery cashier job with a sexual offense against a child involving an applicant seeking work in a daycare center.
The distinction underscores why employers should avoid treating all criminal records as equivalent or relying on blanket exclusions without considering job-related factors.
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