EEOC Rescinds Arrest and Conviction Record Guidance: What Employers Need to Know

On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance”), effective immediately.¹ The EEOC approved the Guidance in 2012 to consolidate and update its prior policy statements on how an employer’s use of criminal history information could violate Title VII under disparate treatment and disparate impact theories.² In announcing the rescission, the EEOC stated that the repeal does not restore any policy statements superseded by the 2012 Guidance nor does it require employers abandon any lawful practices adopted in response to the Guidance.³

While the recission indicates the EEOC may be reevaluating its stance, this change does not amend Title VII; disparate impact liability remains codified in the statute, and the Supreme Court’s decision in Griggs v. Duke Power Co. remains binding precedent.⁶ As EEOC Chair Andrea Lucas emphasized, “[r]escinding this guidance does not give employers license to engage in unlawful discrimination.”³ Practically, however, the rescission may lead some employers to scale back efforts to evaluate and remedy potentially discriminatory screening and selection procedures, a step that could carry risk.

While the Guidance is no longer in effect, Title VII still controls the issue. As an initial matter, the Guidance explained that an arrest, standing alone, does not establish that criminal conduct occurred, while a conviction usually serves as sufficient evidence that the person engaged in the underlying conduct.² It also identified two circumstances in which the EEOC believed employers would consistently satisfy the job related and consistent with business necessity defense: (1) validating the criminal conduct screen under the Uniform Guidelines on Employee Selection Procedures; or (2) developing a targeted screen based on the Green factors and providing an individualized assessment to individuals excluded by the screen.² Employers should no longer assume they can point to the Guidance as an agency-endorsed framework, but the underlying legal standard it described has not changed.

Despite the lack of guidance from the EEOC, Title VII still determines the analysis. Having a criminal record is not a protected characteristic under Title VII, but an employer’s use of criminal history can still give rise to liability in two ways. First, an employer that treats criminal history differently for applicants or employees of different races or national origins engages in disparate treatment: for example, by rejecting an African American applicant with a criminal record while hiring a similarly-situated White applicant with a comparable record, an employer would be engaging in disparate treatment.² The EEOC has stated that it will continue to enforce Title VII’s prohibition on intentional discrimination, including employment requirements that are proxies for intentional discrimination.

Second, Title VII expressly provides that an unlawful employment practice based on disparate impact is established where a complaining party shows that a particular employment practice causes a disparate impact on the basis of race, color, religion, sex, or national origin, and the employer “fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”⁷ The EEOC may no longer pursue these claims, but individuals may still assert them in private litigation.

The case law on which the Guidance was built also remains in place in those circuits. In Green v. Missouri Pacific Railroad, the Eighth Circuit held that a policy disqualifying any applicant with a conviction for any crime other than a minor traffic offense violated Title VII, and identified three factors relevant to whether a criminal record exclusion is job related and consistent with business necessity: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct, and/or completion of the sentence; and (3) the nature of the job held or sought (the “Green factors”).⁸ Similarly, the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority requires employers to show that criminal record exclusions “accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.”⁹ Those decisions have not been overruled, but employers should defer to their circuit’s case law when defending these claims.

Finally, the rescission does not affect other laws that regulate criminal history screening. The Fair Credit Reporting Act continues to govern background checks obtained through consumer reporting agencies,¹⁰ and many states and localities restrict when and how employers may ask about or consider arrest and conviction records. In Wisconsin, for example, arrest and conviction records are protected characteristics under the Wisconsin Fair Employment Act.¹¹

The rescission does not change the viability of disparate impact or disparate treatment claims based on criminal history screening; it only removes the EEOC’s guidance on them. The rescission is one of several steps the EEOC has taken to remove disparate impact theory from its enforcement work: this recission is consistent with Executive Order 14281’s directive that the EEOC and Department of Justice (DOJ) reassess pending matters relying on disparate impact liability⁴ and the DOJ’s recent conclusion that the EEOC’s disparate impact guidelines are unconstitutional.⁵

Employers that built their screening programs around the Guidance are not required to unwind those practices,³ and in most cases should not. Blanket policies that automatically disqualify applicants based solely on criminal history remain a significant source of risk, as do policies that treat an arrest as proof of misconduct. Employers should continue to tie any criminal history exclusion to legitimate business interests and the duties of the position, as well as continue to use individualized assessments that consider the nature of the offense, the time elapsed, and the job duties. Finally, employers should also watch for whether the EEOC articulates a different framework for evaluating the job-related and “consistent with business necessity” standard going forward.

• In connection with counsel, audit criminal history screening policies, application questions, and background check vendor processes for blanket or overly broad exclusions.
• Confirm that any exclusion is targeted to the nature and gravity of the offense, the time elapsed, and the nature of the job, and document the business justification and research supporting it.
• Continue to treat arrests differently from convictions and base decisions on the underlying conduct, not the fact of an arrest alone.
• Maintain an individualized assessment process that gives individuals notice and an opportunity to explain before a final, adverse decision.
• Confirm compliance with the Fair Credit Reporting Act and applicable state and local fair chance laws, including the Wisconsin Fair Employment Act.
• Train managers and hiring officials to apply criminal history standards consistently across all applicants and employees and to keep criminal history information confidential.
• If your business receives a discrimination charge alleging discrimination connected to arrests or conviction records, contact counsel.  

1. EEOC Votes to Rescind Enforcement Guidance on Arrest and Conviction Records, U.S. Equal Emp. Opportunity Comm’n (Oct. 29, 2026), https://www.eeoc.gov/newsroom/eeoc-votes-rescind-enforcement-guidance-arrest-and-conviction-records.
2. U.S. Equal Emp. Opportunity Comm’n, No. 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 25, 2012) (rescinded Oct. 28, 2026), https://www.eeoc.gov/sites/default/files/migrated_files/laws/guidance/arrest_conviction.pdf.
3. EEOC Votes to Rescind Enforcement Guidance on Arrest and Conviction Records, supra note 1.
4. Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 28, 2025).
5. Justice Department Concludes EEOC Disparate-Impact Guidelines Violate the Constitution, U.S. Dep’t of Just. (June 9, 2026), https://www.justice.gov/opa/pr/justice-department-concludes-eeoc-disparate-impact-guidelines-violate-constitution.
6. Griggs v. Duke Power Co., 401 U.S. 424 (1971); Civil Rights Act of 1991, Pub. L. No. 102-166, § 105.
7. 42 U.S.C. § 2000e-2(k)(1)(A).
8. Green v. Mo. Pac. R.R. Co., 523 F.2d 1290, 1293 (8th Cir. 1975), aff’d, 549 F.2d 1158, 1160 (8th Cir. 1977).
9. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 244–45 (3d Cir. 2007).
10. 15 U.S.C. § 1681 et seq.
11. Wis. Stat. §§ 111.321, 111.335.