On October 28, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its enforcement guidance on the use of arrest and conviction records in employment decisions. The rescission is effective immediately.
The Rescinded EEOC Guidance
The guidance, which was approved in 2012 under the Obama administration, outlined how employers could use an individual’s criminal records in making employment decisions. The purpose of the 2012 guidance was to provide employers with a means to determine whether denying employment based upon an individual’s criminal record would count as employment discrimination under Title VII of the Civil Rights Act (Title VII).
Although having a criminal record is not a protected class or characteristic, an employer’s use of an individual’s criminal history could still result in unlawful discrimination. The guidance addressed potential liability under two theories: disparate treatment and disparate impact.
Disparate Treatment vs. Disparate Impact
Under disparate treatment, an employer is liable for violating Title VII when an employee or applicant is treated differently because of a protected class, like race, national origin, etc. Under disparate impact, an employer is liable for violating Title VII when a policy or practice disproportionately screens out members of a protected class or characteristic and the employer cannot show that the policy or practice is job-related and consistent with business necessity.
Using the Green Factors to Determine Disparate Impact
The guidance spends a considerable amount of time detailing how employers can avoid the types of claims that arise from disparate impact, where an otherwise neutral policy has a discriminatory impact. In doing so, it outlines three factors (the Green factors) employers should consider when assessing an individual’s criminal record for employment: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job held or sought.
Employers used the Green factors to help determine whether and to what extent an individual’s conviction records should affect their employment. Rather than treating all criminal conduct as a bar to employment, the factors encouraged employers to consider the seriousness of the offense, the amount of time that has passed, and the relationship between the conduct and the job.
With the guidance rescinded, the question becomes whether employers need to change that approach.
What is Changing for Conviction Records in Employment?
The press release from the EEOC announcing the rescission made it clear that rescinding the guidance does not give employers license to engage in unlawful discrimination. Title VII continues to prohibit discrimination and the EEOC will continue to pursue cases involving disparate treatment. The EEOC further emphasizes that rescission doesn’t reinstate any prior rule and doesn’t require employers to abandon any lawful background check or criminal record check practices that they may have adopted in reliance on the guidance. In other words, the guidance is gone, but Title VII remains in full effect.
Rescission Part of a Broader Policy Shift
The rescission is consistent with the second Trump administration’s broader policy shift. In April 2025, President Trump signed Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, where he directed the U.S. Attorney General and the EEOC to reassess all investigations, lawsuits, and positions relying on disparate impact as a theory of liability. Because disparate impact was a significant portion of the 2012 guidance, the rescission aligns with that broader policy shift.
What Does This Mean for Employers?
The key takeaway is simple: there is no need to immediately overhaul criminal background screening practices. Rather than viewing the rescission as a reason to abandon established practices, employers should use it as an opportunity to review their policies and hiring practices to ensure they remain consistent and defensible.
Title VII remains in effect, and employers should continue to be mindful of discrimination risks when making employment decisions based on criminal history.
By: Audra L. Parton, JD
