What's Happening?
The U.S. Equal Employment Opportunity Commission (EEOC) voted on October 28, 2026, to immediately rescind its 2012 enforcement guidance concerning the use of arrest and conviction records in employment decisions. The vote was 2-to-1 in favor of rescission.
The previous guidance had indicated that employers' use of such records could potentially violate Title VII of the Civil Rights Act of 1964, specifically under disparate treatment or disparate impact theories. EEOC Chair Andrea Lucas stated that this action 'reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.' She emphasized that rescinding the guidance does not permit unlawful discrimination, and the EEOC will continue to enforce protections against discrimination based on race or national origin, including employment requirements that act as proxies for intentional discrimination. The federal government has been moving away from enforcing employment laws based on disparate impact theories since the 2012 guidance was published.
Why It's Important?
This rescission is significant for U.S. employers and job applicants, particularly those with arrest or conviction records. While the EEOC may continue to pursue cases involving disparate treatment, its focus on disparate impact claims related to criminal background checks is expected to diminish. This shift could alter the landscape of private lawsuits, as employers might argue that the rescission weakens Title VII disparate impact claims, while plaintiffs may contend it does not affect existing case law. The change could lead to varying interpretations and outcomes in discrimination cases. Employers might gain more flexibility in their hiring practices regarding individuals with criminal histories, potentially reducing the legal risks associated with disparate impact claims from the EEOC. However, the rescission does not impact the federal Fair Credit Reporting Act (FCRA) or state and local laws governing the use of criminal history information, meaning employers must still comply with these regulations. This creates a complex legal environment where federal guidance has changed, but other layers of regulation remain.
What's Next?
Following the rescission, the EEOC is expected to continue enforcing cases involving disparate treatment but is less likely to pursue disparate impact charges related to criminal background checks in employment. Instead, the agency may issue right-to-sue letters for such allegations. Private lawsuits alleging Title VII discrimination, based on both disparate treatment and disparate impact claims, are likely to continue. The legal arguments in these private cases may evolve, with employers potentially using the rescission to challenge disparate impact claims, while plaintiffs may argue its irrelevance to established Title VII case law. Employers are advised to review their written policies to ensure compliance with existing state and local laws regarding background checks and to train hiring managers accordingly. The Ogletree Deakins’ Background Checks Practice Group will monitor further developments and provide updates, indicating ongoing legal adjustments and interpretations will be necessary for businesses to navigate this evolving regulatory environment.
Beyond the Headlines
The rescission of the 2012 guidance delves into the deeper legal and ethical considerations surrounding employment opportunities for individuals with criminal records. While the EEOC's stated intent is to align with constitutional limits and congressional authority, the practical implication could be a shift in the burden of proof and enforcement focus. The move away from disparate impact theories by the federal government suggests a broader philosophical change in how employment discrimination is addressed, potentially emphasizing intentional discrimination over systemic or unintentional discriminatory effects. This could lead to increased scrutiny on the intent behind hiring policies rather than their statistical outcomes. The ongoing enforcement of the FCRA and various state and local laws means that employers still face a patchwork of regulations, highlighting the complexity of balancing rehabilitation, public safety, and fair employment practices. The long-term societal impact could involve debates about the role of government in addressing systemic barriers to employment for formerly incarcerated individuals and the extent to which employers should be held accountable for policies that, while not intentionally discriminatory, disproportionately affect certain groups.
