Quick Hits
- The EEOC voted to rescind its 2012 enforcement guidance related to using arrest and conviction records in employment decisions.
- The Commission stated that the agency voted 2-to-1 in favor of rescinding on October 28, 2026, and that the rescission is effective immediately.
- The 2012 guidance had indicated that employers’ use of information on arrest and conviction records could implicate their obligations under Title VII of the Civil Rights Act of 1964—under both disparate treatment or disparate impact theories.
EEOC Chair Andrea Lucas stated that the vote to rescind “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.”
The U.S. Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) received a draft final rule that would rescind the previous guidance, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act.” Since the publication of the 2012 guidance, the federal government has pivoted away from enforcing employment laws based on disparate impact theories.
Expected Impact of the Guidance Rescission
The EEOC likely will continue to pursue enforcement of cases involving disparate treatment, but not disparate impact, in the use of criminal background checks in employment. Although the EEOC likely would continue not to pursue disparate impact charges (opting instead to issue right-to-sue letters), disparate impact allegations based on criminal histories may continue in private lawsuits.
Plaintiffs, however, likely will continue to bring private lawsuits alleging Title VII discrimination based on both disparate treatment and disparate impact claims. At the same time, rescission of the 2012 guidance could affect private lawsuits because employers may argue that the rescission undercuts a Title VII disparate impact claim, while private plaintiffs may argue that the rescission does not impact existing Title VII disparate impact case law.
Finally, the recission is not expected to directly impact the federal Fair Credit Reporting Act (FCRA) or state or local laws governing the use of criminal history information. The FCRA imposes procedural and substantive requirements on employers using background checks obtained from third-party vendors, or state and local background check laws governing the use of criminal history information, which would continue to be enforced by agencies other than the EEOC and/or private plaintiffs.
Employers may wish to review their written policies to ensure compliance with state and local laws regarding background checks and train hiring managers to stay compliant with background check laws.
Ogletree Deakins’ Background Checks Practice Group will continue to monitor developments and will provide updates on the Background Checks and Employment Law blogs as additional information becomes available.
In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state Background Check laws, as well as those of major localities. Subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.
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