Key Takeaways:
- The Equal Employment Opportunity Commission (“EEOC”) has rescinded its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (“2012 Guidance”).
- The 2012 Guidance cautioned employers that making employment decisions based on arrest and conviction records could disparately impact employees based on their race or national origin.
- The rescission is consistent with the EEOC’s current enforcement plan, but employers still face liability from private litigants and state agencies.
The EEOC recently voted to rescind its 2012 Guidance, which cautioned employers that making employment decisions based on arrest and conviction records could result in unlawful discrimination. The 2012 Guidance explained that even facially neutral hiring practices could create an unlawful disparate impact based on race or national origin. The 2012 Guidance recommended that employers engage in individualized reviews when making employment decisions that consider arrest and conviction records. The EEOC’s decision to rescind the 2012 Guidance reaffirms the agency’s current enforcement position, which is shifting away from pursuing disparate impact claims in favor of disparate treatment theories.
The 2012 Guidance
The EEOC is authorized to investigate charges of discrimination and bring enforcement actions against private employers for violations of federal anti-discrimination laws. In 2012, the EEOC issued guidance that explained an employer’s consideration of arrest and criminal conviction records could result in unlawful discrimination in two ways. First, an employer violates Title VII when it treats employees differently because of a protected characteristic, such as where the employer disqualifies applicants of one race for a conviction but does not disqualify applicants of another race for the same conviction (disparate treatment).
Second, the EEOC stated that even facially-neutral policies – such as those that ban all applicants with a criminal history – may nevertheless violate Title VII if they disparately impact Title VII protected groups. As the EEOC explained, “there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group.” The EEOC based this position on statistics showing that certain racial groups are arrested in numbers disproportionate to their representation in the general population, meaning that – according to the EEOC – blanket exclusions on employees with arrest and conviction records would result in a disparate impact in violation of Title VII.
An employer could avoid Title VII disparate-impact liability if it showed its policy or practice was “job related for the positions in question and consistent with business necessity.” To prove a business necessity, the EEOC encouraged employers to adopt an individualized inquiry that included an examination of (at least): (i) the nature and gravity of the offense or conduct, (ii) the time that has passed since the offense, conduct and/or completion of the sentence; and (iii) the nature of the job held or sought. The 2012 Guidance also explained that arrests themselves do not establish that criminal conduct occurred, although in some instances the fact of an arrest warrants a fact-based analysis to determine whether the conduct underlying the arrest justifies an adverse employment action.
The EEOC Rescinds the 2012 Guidance on October 28, 2026
On October 28, 2026, the EEOC voted to rescind the 2012 Guidance. In the agency’s announcement, EEOC Chair Andrea Lucas stated that “The Commission’s 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… 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 EEOC’s decision to rescind its 2012 Guidance is consistent with its current approach of prioritizing disparate treatment cases while foregoing theories of disparate impact. The EEOC’s current National Enforcement Plan, released on June 4, 2026, notes that the Commission “concludes that allegations of intentional discrimination (disparate treatment) by an employer inherently are more egregious… than unintentional disparities between groups of employees… the EEOC will prioritize disparate treatment theories of liability… [The EEOC] will eliminate the use of disparate impact liability theories in investigations… and will not commence, develop, or continue to pursue litigation advancing disparate impact claims.”
The EEOC further stated that this rescission does not restore any policy statements superseded by the 2012 Guidance, nor does it require employers to abandon any lawful practices they may have adopted in response to it.
To Summarize
The EEOC’s rescission of its 2012 Guidance reaffirms the agency’s current enforcement position that it will not pursue claims of discrimination based on a disparate impact theory. Still, this rescission does not eliminate disparate-impact liability for employers. While disparate impact claims may no longer be prioritized by the EEOC, private plaintiffs will still be able to pursue those claims in Title VII litigation. Employers may also be subject to state discrimination laws and state agencies which continue to investigate disparate impact claims, depending upon the applicable law and jurisdiction. Employers must also remember to comply with other background-check requirements under federal law, such as the Fair Credit Reporting Act.
It is crucial that employer policies remain facially neutral, and that employment decisions are made based on business necessity. If you have any questions about conducting employee background checks, employment policies, or Title VII litigation, please reach out to your Dinsmore attorney.