EEOC Proposes Rescinding 2012 Criminal Record Screening Guidance
The EEOC has submitted a draft final rule to the Office of Information and Regulatory Affairs that would withdraw its 2012 enforcement guidance on using arrest and conviction records in employment decisions. The old guidance said such use could violate Title VII under disparate treatment or disparate impact theories. The federal government has signaled it will not pursue disparate impact enforcement.
On Oct. 6, 2026, OIRA received a draft final rule from EEOC. If approved, EEOC likely will publish it and withdraw 2012 guidance. That guidance addressed criminal history data from arrests and convictions in hiring and employment decisions.
It said such use could violate Title VII through intentional disparate treatment or neutral practices with disproportionate effects. It described a three-step disparate impact framework and referenced Green factors plus nine individualized assessment considerations. Since 2025, federal enforcement has moved away from disparate impact theories.
If finalized, the rescission could alter how employers weigh criminal history and how applicants with records pursue bias claims. Workers with arrest or conviction records, especially Black and Hispanic applicants, may face different screening risks, while employers could gain clearer expectations but also face uncertainty as courts and states apply varied rules. The change may shift debate over workplace fairness and hiring access to legislatures, regulators, and individual lawsuits.