The EEOC Rescinded Criminal History Guidance Not the Need for Careful Hiring

The Equal Employment Opportunity Commission has rescinded its 2012 enforcement guidance on the use of arrest and conviction records in employment decisions. The October 28, 2026 vote took effect immediately and signals a change in the agency’s preferred enforcement framework. It does not, however, give employers a green light to return to blanket criminal-history exclusions or to treat background screening as a simple pass-fail exercise.

The rescinded guidance had encouraged employers to use individualized assessments and to evaluate the nature of the offense, time elapsed, and relationship between the record and the job. Some employers may be tempted to read the rescission as an invitation to remove those practices. That would be a mistake. The EEOC specifically stated that rescission does not require employers to abandon lawful practices adopted in response to the old guidance. More importantly, Title VII’s underlying prohibitions on intentional discrimination and disparate impact remain in place.

A criminal-history policy can still create risk if it is applied differently based on race or national origin, or if a broad exclusion disproportionately screens out a protected group without a sufficiently job-related and necessary justification. Courts, state agencies, local fair-chance laws, the Fair Credit Reporting Act, licensing rules, and industry-specific restrictions all continue to shape the analysis. The agency’s guidance may have changed, but the legal terrain underneath it did not vanish overnight.

The timing of the rescission is especially important for multistate employers. Washington’s expanded Fair Chance Act, New York City’s revised Fair Chance rules, and many other state and local laws impose detailed process obligations. These rules may require a conditional offer before an inquiry, a written assessment, disclosure of the report or analysis, and a waiting period before final adverse action. A national background-check policy built only around federal requirements is unlikely to work.

Employers should begin with a policy review. Remove statements that call the 2012 EEOC guidance binding or current. Then look beyond the citation. Is the company’s screening matrix tailored by job category? Does it distinguish convictions from arrests and non-convictions? Does it allow HR to consider evidence of rehabilitation, record errors, and the relationship between the conduct and actual job duties? Are decisions documented consistently? Those are still excellent risk-management questions.

Recruiters and hiring managers also need a reminder that criminal history is not the only issue in a background report. Consumer reporting laws may require standalone disclosures, authorizations, pre-adverse-action notices, a copy of the report, and a summary of rights. State and city laws may demand more. A well-designed workflow should sequence these steps automatically, reducing the chance that a manager acts before an applicant has a fair opportunity to respond.

The practical takeaway is refreshingly unexciting: keep job-related, individualized, documented decision-making. The EEOC may have taken down one signpost, but employers still need to navigate the road. Good background-check governance remains one of the clearest ways to reduce discrimination, consumer-reporting, and fair-chance exposure at the same time. Periodic outcome testing can also identify whether a policy is producing results that warrant a closer legal review.

Lisa Smith, SPHR, SCP