EEOC rescinds guidance on employer’s use of arrest and conviction records

On October 28, 2026, the Equal Employment Opportunity Commission (EEOC) rescinded its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act. The guidance outlined how an employer’s use of criminal background checks could result in disparate impact discrimination involving race and national origin. Disparate impact discrimination occurs when neutral-seeming policies and procedures disproportionately affect a protected class.

What the guidance said

The guidance requested employers to show how their background check practices were job-related and consistent with business necessity. Specifically, under the guidance, criminal background checks were evaluated by three main factors: 

• The nature and gravity of the offense; 

• The amount of time that has passed since the offense or completion of the sentence; and 

• The nature of the job held or sought.

Disparate impact still illegal

It’s important to stress that even though the guidance has been rescinded, disparate impact discrimination is still illegal under Title VII. Specifically, private litigants can sue employers for criminal background check programs that are discriminatory. Further, employers must continue to meet their obligations under the Fair Credit Reporting Act when conducting background checks.