EEOC Votes to Rescind 2012 Criminal Records Guidance

On October 28, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted 2-to-1, with Commissioner Kalpana Kotagal dissenting, to rescind its 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” (the “Enforcement Guidance”). In its Enforcement Guidance, the EEOC provided guidance to employers concerning when they could, consistent with Title VII, refuse to hire an applicant or terminate an employee because of a criminal record.

The EEOC rescinded the Enforcement Guidance in its entirety, effective immediately. In an October 29, 2026 press release, EEOC Chair Andrea Lucas stated the rescission “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.” She also explained that “[r]escinding 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 rescission is likely to affect how the EEOC handles charges that allege unlawful discrimination under a disparate impact theory. Although Title VII explicitly recognizes disparate impact as a theory of liability for unlawful discrimination, the EEOC will likely decline to investigate charges or bring enforcement actions that rely on this theory. The EEOC’s approach follows Executive Order 14281, which directed federal agencies in April 2025 to deprioritize disparate impact enforcement. Complainants must still file a charge with the EEOC before suing for unlawful discrimination based on a disparate impact theory. However, it is likely that such charges will not be actively investigated by EEOC.

The recission, however, does not affect state and local laws that restrict an employer’s use of criminal records in making employment decisions. Employers should not read the EEOC’s recission of the Enforcement Guidance as authorization to adopt blanket bans on hiring individuals with criminal records. Employers should review their employment screening policies and practices to confirm they comply with state and local laws.