EEOC Rescinds 2012 Criminal Conviction Guidance: Hiring Safeguards Remain

Takeaways

• The EEOC voted to rescind its long-standing 2012 Guidance that recommended targeted, individualized reviews regarding job applicants and employees’ arrest and conviction records.
• Rescission reaffirmed the agency’s enforcement posture that it will not pursue Title VII disparate impact claims based on race or national origin arising, in this instance, from criminal history inquiries.
• Employers still need to be proactive and take steps to comply with Title VII and state and local laws.

Related links

• EEOC Votes to Rescind Enforcement Guidance on Arrest and Conviction Records
• EEOC Proposes to Rescind Employer Voluntary Affirmative Action Plan Guidance

Article

The Equal Employment Opportunity Commission (EEOC) voted on Oct. 28, 2026, to withdraw its 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII” (2012 Guidance). The decision took effect immediately.

Background: 2012 Guidance

The EEOC’s 2012 Guidance sought to provide employers with a recommended roadmap to EEOC enforcement and employment decision-making for considering individuals who have arrest or conviction records.

As part of the 2012 Guidance, employers were reminded about the two theories of discrimination:

• Intentional discrimination (involving treatment of an individual) 
• Disparate impact discrimination (involving the effects of a policy or practice on a group)

Although arrests and convictions records themselves have never been protected characteristics under Title VII of the Civil Rights Act, the EEOC cautioned that, as part of its enforcement role, decisions involving such records could disproportionately affect certain minority groups and result in race or national origin discrimination.

The 2012 Guidance recommended, “As a best practice, … employers not ask about convictions on job applications and …, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.” The 2012 Guidance also recommended that if employers asked applicants about past convictions, they first “develop[] a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job …, and then provide[] an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity,” citing Green v. Missouri P. R. Co., 549 F.2d 1158 (8th Cir. 1977) (the Green factors).

What Changed? What Didn’t?

Despite the change in federal administrative enforcement, Title VII and state and local law remain unchanged and the suggested best practices remain the same. Indeed, EEOC Chair Andrea Lucas stated that the vote to rescind the 2012 Guidelines “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.”

According to Lucas, “Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. The EEOC will continue to vigorously enforce these protections in accordance with the law.”

Importantly, the EEOC rescission of the 2012 Guidance does not change employers’ background check procedures and their obligation to the notice provisions required under the Fair Credit Reporting Act (FCRA). In addition, an employer should still justify its legitimate nondiscriminatory business decisions not to hire an individual with a conviction record, for example, who believes they were subject to unlawful discrimination based on a recognizable protected characteristic under Title VII. The individual may still file an EEOC charge and, after receiving the EEOC’s 90-day Right-to-Sue letter, pursue a Title VII claim in court.

For employers, it is business as usual, as they will continue to consider the complex web of applicable state and local laws where:

1. Arrest and conviction status may be protected; 
2. Individualized assessments are required; or 
3. Other requirements, including time frames, may be required to allow the individual the opportunity to provide information to the employer before it makes a final decision.

Finally, FCRA compliance must be integrated when using a third-party vendor to conduct criminal (and other) background checks for employment purposes.

Key Steps for Employers

• Continue to conduct periodic audits of decision-making processes for individuals subject to criminal history checks to evaluate any potential disparate impact risk.
   
• Review requirements of state and local fair chance laws to ensure applicable compliance with individualized assessment requirements, as well as any other compliance requirements.
   
• Train individuals involved with the review and decision-making process, including on the application of consistent, compliant, and fair process requirements.

Jackson Lewis attorneys are available to answer employers’ questions about background check policies and practices.