HR Legalist

EEOC Rescinds Enforcement Guidance on Arrest and Conviction Records

On October 28, 2026, the 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. This change took immediate effect following its October 29, 2026 announcement. This withdrawal follows Executive Order 14281, issued in April 2025, which directed federal agencies to reduce their emphasis on disparate impact enforcement.

The former EEOC enforcement guidance, published in April 2012, analyzed how employment decisions made on the basis of an individual’s criminal history (differentiating between arrest and conviction history) had the potential to disproportionately impact protected groups under Title VII. Specifically, national data confirmed that criminal record exclusions in the workplace were disparately impacting applicants based on race and national origin. While employers are not categorically precluded from considering an arrest or criminal record as the basis for an applicant’s exclusion, Title VII provides that the decision must relate to the position in question and meet business necessity. In consideration of these requirements, and to encourage employer compliance with federal laws and regulations, the former guidance provided best practices for employers to adhere to, including screening policies tied to the seriousness of the offense, the amount of time that had elapsed, and the essential job requirements of the position in order to make individualized assessments.

Although the EEOC’s decision reflects a shift in federal agency enforcement policies, discrimination based on race, national origin, or any other protected characteristic is still prohibited under Title VII. This was confirmed by EEOC Chair Andrea Lucas, who issued a statement that while the “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, [it] does not give employers license to engage in unlawful discrimination . . . .” In addition to reaffirming its enforcement against intentional discrimination, the EEOC also cautioned against the use of screening requirements that have the potential to raise disparate impact claims. Facially neutral policies must still pass muster under Title VII’s disparate impact legislation, codified under 42 U.S.C. § 2000e–2(k), as well as any other applicable legislation. While the EEOC stopped pursuing almost all pending charges based solely upon a theory of disparate impact last fall, such claims can still be pursued by employees in court.

State and local regulations also remain unaffected by the EEOC’s latest announcement, including Philadelphia’s Fair Criminal Record Screening Standards Ordinance and other similar fair chance hiring mandates (commonly referred to as “ban the box” laws). Employers should consider the latest EEOC rescission in the context of any state or local developments or existing laws to ensure that internal procedures remain compliant.  

Going forward, employers should generally exercise caution before changing any employment hiring and selection procedures. Any employment policy changes should factor in the continuing protections afforded by Title VII’s disparate impact legislation and related state and local laws. Hiring and screening procedures should still consider whether criminal or arrest history exclusions are appropriate for consideration based on the nature of the role and as dictated by business necessity.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.