EEOC Votes to Rescind Its Arrest and Conviction Records Guidance

What Employers Need to Know About the EEOC’s Rescission

The U.S. Equal Employment Opportunity Commission (EEOC) has voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. The change removes the EEOC’s most detailed roadmap for challenging criminal background screening, but it does not change Title VII itself, the courts’ disparate impact case law, or the many state and local laws that restrict the use of criminal history. Employers should treat the rescission as a change in federal enforcement priorities, not a license to overhaul screening practices.

Background: The 2012 Guidance

Issued in April 2012, the Guidance explained how an employer’s use of criminal records could violate Title VII in two ways: disparate treatment (applying screens differently based on race, national origin or another protected trait) and disparate impact (applying a neutral screen that disproportionately excludes a protected group and is not job-related and consistent with business necessity).
Its key positions included:

• Arrests are not convictions. An arrest alone does not establish criminal conduct, and an exclusion based solely on an arrest is not job-related and consistent with business necessity, although employers could consider the underlying conduct.
• The Green Factors. Established by the U.S. Court of Appeals for the Eighth Circuit in the 1975 landmark case Green v. Missouri Pacific Railroad, the Green Factors provide that screens should be targeted to (1) the nature and gravity of the offense, (2) the time elapsed since the offense or completion of the sentence, and (3) the nature of the job.
• Individualized assessment. Employers were encouraged to give screened-out individuals an opportunity to explain their circumstances before making a final decision.
• No blanket bans. The EEOC discouraged automatic disqualification for any criminal record and recommended narrowly tailored written screening policies.

In practice, the Guidance drove widespread adoption of tiered, position-specific lookback periods, individualized review processes, and the elimination of arrest-only disqualifications.

What Happened

On October 6, 2026, the EEOC submitted a draft final rule titled “Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act” to the White House Office of Management and Budget for review. On October 29, the EEOC voted to rescind the Guidance, effective immediately.
“The Commission’s rescission of the enforcement guidance reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority,” said EEOC Chair Andrea Lucas. This action fits squarely within the agency’s broader retreat from disparate impact enforcement under Lucas, following Executive Order 14281 (April 23, 2025), which directed federal agencies to deprioritize disparate impact liability, and the EEOC’s June 30, 2026 vote to rescind its affirmative action guidelines. Because the Guidance is, at its core, a disparate impact document, its withdrawal was widely anticipated.

Practical Impact for Employers

A narrower federal enforcement posture: Expect the EEOC to stop investigating or litigating charges premised on the theory that a neutral criminal history screen has a disparate impact on Black or Hispanic applicants. The agency is also unlikely to issue replacement guidance.

Title VII has not changed: Disparate impact liability is codified in Title VII (42 U.S.C. § 2000e-2(k)) and rooted in Supreme Court precedent. Private plaintiffs, including class action plaintiffs, may still bring these claims, and courts may continue to look to the Green factors and the Guidance’s reasoning as persuasive authority.

Disparate treatment risk remains: The EEOC will continue to pursue intentional discrimination, such as overlooking a white applicant’s conviction while rejecting a Black applicant with a comparable record.

Other federal obligations continue: The Fair Credit Reporting Act’s (FCRA) disclosure, authorization, and pre-adverse and adverse action requirements are unaffected and remain a frequent source of class litigation. Industry-specific federal screening mandates also continue to apply.

Policy pendulum risk: A future EEOC could reinstate similar guidance. Employers that dismantle compliant practices now may face exposure later, as well as reputational and workforce consequences in the interim.

State and Local Law: New York Remains Demanding

The EEOC’s action has no effect on state and local “ban the box” and fair chance laws, which in many jurisdictions are more restrictive than the Guidance ever was. New York employers in particular should note:

• Corrections Law Article 23-A and Executive Law § 296(15): Employers with 10 or more employees may not deny employment based on a prior conviction unless there is a direct relationship to the job or an unreasonable risk to property or public safety, as determined by weighing eight statutory factors. Applicants may request a written statement of reasons.
• Executive Law § 296(16): Employers generally may not inquire about or act on arrests that did not result in a pending charge, sealed records, youthful offender adjudications or most non-criminal violations.
• Clean Slate Act: Effective November 16, 2024, eligible conviction records are automatically sealed after specified waiting periods, and employers generally may not consider sealed records.
• NYC Fair Chance Act: In New York City, employers may not inquire about criminal history until after a conditional offer, must conduct the Article 23-A analysis, and must follow a written notice process that gives the candidate at least five business days to respond. The law also extends protections to pending cases and current employees.
• Other localities: Buffalo, Rochester and other New York municipalities, as well as many states and cities nationwide, have their own fair chance requirements.

Recommended Action Steps

• Do not abandon individualized assessment: Keep considering the nature of the offense, its recency and the duties of the position. In New York, this analysis is legally required regardless of federal policy.
• Eliminate blanket and arrest-only exclusions: These remain the most litigation-prone practices under Title VII and are unlawful in many states, including New York.
• Map jurisdictional requirements: Inventory every location where you hire, including remote positions, and confirm compliance with applicable timing, inquiry, notice and lookback rules.
• Audit applications and offer letters: Remove criminal history questions from pre-offer materials where prohibited and update conditional offer language.
• Review FCRA workflows: Confirm stand-alone disclosures, authorizations, and pre-adverse and adverse action notices, and coordinate them with fair chance notice periods.
• Align vendor practices: Confirm that background check providers filter sealed, non-conviction, and outdated records consistent with applicable law.
• Train decision makers and document decisions: Ensure recruiters apply policies consistently and record the job-related reasons for adverse decisions to defend against disparate treatment claims.
• Monitor developments: Watch for Federal Register publications, any litigation challenging the rescission, and state or local legislative responses.