On October 29, 2026, the EEOC announced the immediate rescission of its 2012 enforcement guidance concerning employers’ use of arrest and conviction records.
The EEOC’s rescission, which is consistent with the EEOC’s recent pattern of moving away from enforcement of laws based on a disparate impact theory, is a meaningful change in federal enforcement guidance. The change, however, does not eliminate the legal and practical risks associated with criminal-history screening, nor does it impact applicable state law prohibitions on criminal-history discrimination. Employers should monitor further federal, state, and local developments and seek legal advice before making material changes to hiring or background-check practices.
Background on Criminal-History Screening in Employment Decisions
The now-rescinded guidance addressed how criminal-history screening could result in unlawful discrimination and provided guidance to employers addressing differential treatment based on race or national origin (disparate treatment) and neutral criminal-history screening rules that disproportionately affected a protected group (disparate impact). The now-rescinded guidance encouraged employers to connect screening criteria to the position at issue, considering factors such as the nature and seriousness of the offense, the time elapsed, and the responsibilities of the job.
EEOC Rescission of the Guidance
In its press release announcing the recission, EEOC Chair Andrea Lucas explained the change as “reaffirm[ing] the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.” She also cautioned that rescinding the guidance “does not give employers license to engage in unlawful discrimination.” The EEOC explicitly stated that the rescission does not restore earlier policy statements replaced by the 2012 guidance. It also emphasized that employers are not required to abandon lawful practices adopted in response to the guidance and that federal prohibitions against race and national-origin discrimination remain in effect.
The EEOC has withdrawn an agency guidance document; it does not revise the law or provide blanket approval for broad or automatic criminal-history exclusions. Although criminal history is not itself protected under federal antidiscrimination law, screening practices may still create risk if employers apply them inconsistently or use them as a proxy for discrimination.
Employers Should Remain Cautious
The EEOC’s action does not change separate requirements imposed by state law. For example, under Article 23-A of the New York Correction Law, generally employers are restricted from denying employment based on a prior conviction unless the conviction bears a direct relationship to the position or employment would create an unreasonable risk to property or to the safety or welfare of individuals or the public. Therefore, New York State employers must consider the eight factors set out in Correction Law Section 753 before making a conviction-based decision.
Additional state and local requirements may govern when employers may ask about criminal history, how an assessment must be conducted, and what notices or opportunities to respond must be provided. Employers should confirm the requirements applicable to each state or locality in which they operate. Federal Fair Credit Reporting Act obligations, including disclosure, authorization, and pre-adverse action notice requirements when using a consumer reporting agency, are likewise unaffected.
Impact on Employers and Key Takeaways
Employers should keep in mind that while the EEOC appears to be moving away from disparate impact enforcement, individual plaintiffs will continue to litigate discrimination claims on both disparate treatment and disparate impact bases. Employers, therefore, should not make sweeping changes to hiring practices or policies solely because the guidance was rescinded. Rather, employers should:
- Not treat the EEOC’s rescission of the criminal-history guidance as permission to adopt blanket policies or exclusions based upon an employee’s or applicant’s criminal history.
- Review existing screening criteria to ensure that employment decisions are based upon legitimate, nondiscriminatory reasons.
- Ensure they apply screening criteria consistently to minimize the risk of disparate treatment.
- Continue to comply with state and local requirements, which remain independent of the EEOC’s guidance.
If you have any questions regarding the content of this alert, please contact Rosemary Enright, Labor & Employment Practice Group leader, at renright@barclaydamon.com; Meghan McGovern, associate, at mamcgovern@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.