In late October 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, effective immediately. The withdrawal marks a significant shift in federal enforcement posture, but it does not change the underlying law. Employers should treat it as an occasion to review their background check programs, not to abandon them.

What the Guidance Said

Issued April 25, 2012, the guidance explained that criminal history screening can violate Title VII through disparate treatment or through a neutral exclusion that disproportionately screens out a protected group and is not “job related for the position in question and consistent with business necessity” (disparate impact). Its key positions were:

• Arrests versus convictions. An arrest alone is not a job-related basis for exclusion, though an employer may act on underlying conduct that makes the person unfit for the job.
• The Green factors. Screens should consider the nature and gravity of the offense, the time elapsed and the nature of the job.
• Individualized assessment. Screened-out individuals should receive notice and a chance to explain; screens without this step were more likely to violate Title VII.
• Best practices. Remove conviction questions from applications and limit later inquiries to job-related offenses.

Practical Significance for Employers

Employers are now less likely to face EEOC systemic investigations or commission litigation premised on the disparate impact of a criminal history screen, and the guidance’s recommended practices are no longer the agency’s stated position.

The limits are important, however. Guidance is not law.

Title VII still provides that a practice causing a disparate impact is unlawful unless the employer shows it is job related and consistent with business necessity (42 U.S.C. § 2000e-2(k)), and the executive order sets enforcement priorities without amending that text. Private plaintiffs can still sue, courts will apply existing precedent, and a future commission could change course. Disparate treatment claims, such as applying criminal history standards inconsistently by race, remain fully in play.

Obligations That Remain in Place

Title VII.

A blanket exclusion with no link to job duties remains a litigation risk under both theories.

Fair Credit Reporting Act (FCRA).

Employers using a consumer reporting agency must:

• provide a clear and conspicuous stand-alone written disclosure and obtain written authorization before procuring a report;
• provide a copy of the report and a summary of rights before taking adverse action; and
• provide a final adverse action notice.

State and local fair chance laws.

Several states codify the very framework the EEOC just withdrew. For example:

• California bars employers with five or more employees from asking about conviction history until after a conditional offer, requires an individualized assessment using the Green factors, and requires written notice and at least five business days for the applicant to respond before a final decision.
• Illinois prohibits employers with 15 or more employees from asking about criminal history until the applicant is selected for an interview or receives a conditional offer, and separately requires a factor-based analysis and interactive assessment before acting on a conviction record.

Additionally, many cities and counties have their own ban-the-box ordinances, and industry-specific laws may require or restrict background checks for certain positions. Compliance obligations vary significantly by jurisdiction, and employers should consult counsel to confirm which requirements apply to each workforce.

Next Steps for Employers

• Do not dismantle compliant processes. Targeted screens and individualized assessments remain the best Title VII defense and are mandatory in some states.
• Inventory your locations. Map every state and locality where you hire, including for remote workers, and confirm the applicable timing, notice and assessment rules.
• Review applications and job postings. Confirm that criminal history questions are removed or deferred where required.
• Audit screening criteria. Tie each disqualifying offense and lookback period to the position’s duties, and consider a privileged disparate impact analysis of outcomes.
• Check FCRA workflows. Review disclosure forms, adverse action notices and vendor agreements.
• Train decisionmakers. Ensure recruiters and managers apply criteria consistently and document their reasons.
• Consult counsel. Engage counsel before revising policies, particularly for multistate operations and regulated positions.

Conclusion

The rescission reduces the likelihood of federal disparate impact enforcement, but it does not remove the legal risk of criminal history screening. Title VII, the FCRA and state and local fair chance laws continue to govern these decisions.

The best approach is to keep asking what each background check accomplishes and whether it is tied to the job. Bell Nunnally’s Labor & Employment team is available to help review your policies.