What's Happening?
On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 to withdraw its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
The rescission, effective October 29, does not reinstate prior policy statements nor does it compel employers to abandon lawful practices adopted in response to the 2012 guidance. For over a decade, the 2012 guidance provided a framework for the EEOC's enforcement approach regarding employers' use of criminal history in employment decisions, emphasizing that screening could pose Title VII risks through intentional disparate treatment or disparate impact on protected groups. It also encouraged individualized risk assessments considering the nature and severity of the offense, time elapsed since the offense, and the job type. This action by the EEOC is part of a broader federal retreat from disparate impact enforcement, following Executive Order 14281 (April 2025) which directed agencies to deprioritize disparate impact liability.
Why It's Important?
The EEOC's rescission of its criminal history guidance signals a shift in federal enforcement priorities, but it does not eliminate employers' obligations under Title VII to avoid discrimination based on protected characteristics. Employers are still prohibited from using criminal history as a pretext for discrimination based on race, national origin, sex, or other protected classes. Crucially, existing state and local 'ban the box' or 'fair chance' laws, which regulate the consideration of criminal history in employment, remain fully in effect and are unaffected by the EEOC's action. These laws, adopted in approximately 17 states and over 20 localities, including New York City, Los Angeles, and San Francisco, often impose stricter requirements than federal guidance. They can bar criminal history inquiries before a conditional job offer, limit lookback periods, prohibit considering certain types of criminal records, and mandate detailed notice-and-response procedures before adverse action. Therefore, while federal oversight may lessen, employers must continue to navigate a complex patchwork of state and local regulations, which often require individualized assessments and specific timing for background checks.
What's Next?
Employers should exercise caution and not assume that the EEOC's rescission means they can relax their practices regarding criminal background checks. While the federal enforcement posture may be shifting, the underlying prohibition against using criminal history as a proxy for discrimination under Title VII remains. More importantly, state and local fair chance laws, which are often more stringent, are still in full force. Employers must continue to tailor their application processes, interview procedures, background check policies, and adverse action protocols to ensure compliance with the specific laws of the jurisdictions in which they operate and hire. This includes adhering to requirements such as New York City's Fair Chance Act, which prohibits asking about criminal history until after a conditional offer and mandates a written analysis and opportunity for response before taking adverse action. The continued enforcement of these state and local laws, as affirmed by attorneys general from fourteen states in September 2026, means that employers will still face significant legal obligations in this area.
Beyond the Headlines
The EEOC's decision highlights a broader ideological debate within federal agencies regarding the role of disparate impact theory in civil rights enforcement. The move away from encouraging individualized risk assessments at the federal level could lead to a divergence in regulatory approaches between federal and state/local governments. This creates a complex compliance landscape for businesses operating across multiple jurisdictions, potentially increasing legal and administrative burdens. Furthermore, the continued strength of state and local 'ban the box' laws reflects a growing societal emphasis on rehabilitation and providing individuals with criminal records a fair chance at employment. This trend suggests a long-term shift in public policy towards reducing barriers to re-entry for formerly incarcerated individuals, aiming to improve economic opportunities and reduce recidivism. The legal and ethical implications of this evolving landscape will continue to shape hiring practices and employment law for years to come.
