EEOC rescinds criminal history guidance, but employers should stay the course

On October 28, the Equal Employment Opportunity Commission (EEOC) voted 2 to 1 to immediately rescind its 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.” For 14 years, the 2012 guidance had affected whether an employer’s consideration of applicants’ criminal records violated Title VII of the Civil Rights Act of 1964. Although this 2026 rescission clearly symbolizes a change in the EEOC’s enforcement priorities, its effect on best practices for employers on a day-to-day basis may be less sweeping.

2012 guidance

The 2012 guidance reasoned that if employers excluded applicants from consideration based on their criminal records, Black and Hispanic candidates would likely be disproportionately affected. In its 2012 guidance, the EEOC advised employers that consideration of applicants’ criminal records could violate Title VII in two circumstances:

• When an employer took into account criminal records differently based on an applicant’s race or national origin (intentional discrimination); or

• When excluding candidates based on their criminal record disproportionately affected members of a protected class and the exclusion wasn’t job-related or justified by business necessity (disparate impact discrimination).