EEOC Rescinds Its 2012 Arrest and Conviction Records Guidance, Effective Immediately

EEOC Rescinds Its 2012 Arrest and Conviction Records Guidance; Title VII and FCRA Duties Still Apply

The EEOC has rescinded the enforcement guidance that has shaped criminal-record hiring screens since 2012, effective immediately. The agency says the move does not require employers to abandon any lawful practices they adopted in response to it, and Title VII itself is unchanged.

Information last verified on October 30, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This is a federal story. It concerns Title VII of the Civil Rights Act of 1964 and, separately, the federal Fair Credit Reporting Act. State and local fair-chance, ban-the-box and record-sealing laws are a different body of law and are not affected by the EEOC's action.

What Happened

The U.S. Equal Employment Opportunity Commission announced on October 29, 2026 that the Commission "voted yesterday to rescind its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act (Guidance) which was originally approved in 2012." That puts the vote on October 28. The same release states: "The rescission is effective immediately."

The release draws two limits around the action. First, the rescission "does not restore policy statements superseded by the 2012 Guidance." Those were the Commission's 1987 and 1990 policy statements on arrest and conviction records, plus the discussion in Section VI.B.2 of the Race and Color Discrimination Compliance Manual chapter, all of which the 2012 guidance had consolidated and replaced, according to the EEOC's own companion question-and-answer document. Second, the rescission does not "require employers to abandon any lawful practices they may have adopted in response to it."

EEOC Chair Andrea Lucas framed the vote as a question of agency power, saying 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 said that "[r]escinding this guidance does not give employers license to engage in unlawful discrimination" and that "Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination."

The EEOC has not published a vote record. Its Commission Votes page indexes monthly vote tables back to November 2019, and the most recent one listed is September 2026; there is no October 2026 table on the site as of today. That page states that it covers "all final actions of the full Commission, including notation votes in the Commission's electronic voting system, votes taken at a Commission meeting, and matters approved or disapproved through any other voting procedure of the Commission." Three of the Commission's five seats are currently filled, according to the EEOC: Chair Andrea R. Lucas, Commissioner Kalpana Kotagal and Commissioner Brittany Bull Panuccio, with two member seats and the General Counsel position vacant. We are not reporting a tally or a per-commissioner breakdown because the agency has not released one.

The procedural path is worth noting precisely. A Sunshine Act notice published in the Federal Register on Monday, October 26, 2026 set an open Commission meeting for Friday, October 30, 2026 at 1:00 p.m. Eastern at the agency's Jacqueline A. Berrien Training Center in Washington, with a single agenda item: "Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act." 91 Fed. Reg. 67312. The EEOC's meetings page now lists that October 30 meeting as cancelled. The vote the press release describes happened on October 28, two days before the meeting the agency had noticed for it.

There was no Federal Register rulemaking. A search of Federal Register documents filed by the EEOC since August 1, 2026 returns seven items, none of them a notice of this rescission, and the Federal Register's public-inspection list carries no EEOC document as of October 30. No public comment period preceded the vote.

The 2012 document itself has come off the site. The URL that hosted the Enforcement Guidance on eeoc.gov now returns a page-not-found error, as does the EEOC's related "What You Should Know" page on arrest and conviction records. The EEOC's guidance library, which states that "all of the materials provided in this table remain in effect," no longer lists the arrest and conviction guidance at all. Several companion documents are still posted: the question-and-answer document about the guidance, the 2014 brochure on arrest and conviction records in employment, and the joint EEOC and FTC publication on background checks. The EEOC's public resource page on arrest and conviction records is also still live, and as of today it still links to both pages that now return errors.

What the Law Actually Says

Guidance is not law, and that distinction carries most of the weight here.

Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," and to limit, segregate or classify employees or applicants in a way that deprives them of employment opportunities on those same bases. 42 U.S.C. 2000e-2(a)(1) and (a)(2). That is the disparate treatment prohibition, and it reaches an employer who treats two applicants with comparable records differently because of race or national origin.

Disparate impact liability sits in a separate subsection that Congress added in 1991. Under 42 U.S.C. 2000e-2(k)(1)(A), disparate impact liability is established "only if" one of two showings is made. The first, at (k)(1)(A)(i), is that a complaining party demonstrates that an employer "uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." The second, at (k)(1)(A)(ii), reaches an employer that refuses to adopt an available alternative employment practice. The complaining party generally must show that each particular challenged practice causes the impact. 42 U.S.C. 2000e-2(k)(1)(B)(i). Neither subsection mentions guidance, and neither depends on it.

What Congress gave the EEOC is narrower. The Commission has "authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter." 42 U.S.C. 2000e-12(a). That authority is procedural. It is the provision the Fifth Circuit relied on in 2019 when it held the guidance itself was beyond the agency's power.

In State of Texas v. EEOC, No. 18-10638 (5th Cir. Aug. 6, 2019), a panel of Smith, Wiener and Elrod wrote: "We agree that the Guidance is a substantive rule subject to the APA's notice-and-comment requirement and that EEOC thus overstepped its statutory authority in issuing the Guidance." The court modified the district court's injunction, striking the clause that would have let the guidance stand if the agency ran it through notice-and-comment rulemaking, and clarified "that EEOC and the Attorney General may not treat the Guidance as binding in any respect." The injunction ran in favor of the State of Texas in enforcement actions against the State of Texas. The disposition reads: "The injunction is AFFIRMED as modified, the district court's ruling on the merits of Texas's DJA claim is VACATED, and the DJA claim is DISMISSED."

Separately, the Fair Credit Reporting Act governs how employers obtain and act on background reports, and it operates independently of Title VII. Before procuring a consumer report for employment purposes, an employer must as a general rule make "a clear and conspicuous disclosure" in writing "in a document that consists solely of the disclosure," and must obtain the applicant's written authorization. 15 U.S.C. 1681b(b)(2)(A). A narrow exception at 15 U.S.C. 1681b(b)(2)(B) and (C) substitutes notice and consent by oral, written or electronic means for certain transportation applicants who apply by mail, telephone or computer. Before taking an adverse action based in whole or in part on the report, the employer must give the person "a copy of the report" and "a description in writing of the rights of the consumer." 15 U.S.C. 1681b(b)(3)(A). The adverse-action notice itself follows under 15 U.S.C. 1681m(a). The statute also requires the employer to certify to the screening company that report information "will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation." 15 U.S.C. 1681b(b)(1)(A)(ii).

For how these federal duties interact with state rules, see our overview of background check laws by state and the state-level detail in California's background check requirements.

What Did Not Change

Readers are likely to over-read this announcement, so it is worth being exact about what the rescission does not reach.

Title VII is unchanged. The EEOC did not amend a statute and could not. Disparate treatment claims under 42 U.S.C. 2000e-2(a) and disparate impact claims under 42 U.S.C. 2000e-2(k) remain available on the same statutory terms as before October 28. Chair Lucas said as much in the release: "Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination." Separately from this vote, Executive Order 14281 of April 23, 2025, Restoring Equality of Opportunity and Meritocracy, 90 Fed. Reg. 17537, directs all agencies to "deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability," naming 42 U.S.C. 2000e-2 expressly, and gave the Attorney General and the EEOC Chair 45 days to assess pending matters resting on a disparate impact theory. That order does not amend Title VII and does not reach private lawsuits, but it is the standing federal enforcement posture behind this rescission, and it bears on what the agency itself is likely to pursue.

The statutory defense language is unchanged. An employer facing a disparate impact claim still has to demonstrate that the challenged practice is "job related for the position in question and consistent with business necessity." 42 U.S.C. 2000e-2(k)(1)(A)(i). What is gone is the EEOC's published account of how it would evaluate that showing for criminal-record screens, not the showing itself.

FCRA compliance is unchanged. The disclosure and authorization step, the pre-adverse-action step with the report copy and the written summary of rights, and the adverse-action notice all rest on 15 U.S.C. 1681b(b)(2), 1681b(b)(3) and 1681m(a). The EEOC does not administer the FCRA, and nothing in its announcement touches those sections.

State and local law is unchanged. Fair-chance hiring statutes, ban-the-box ordinances, lookback limits and record-sealing rules are creatures of state and local law. The EEOC release does not mention them. The EEOC's own public resource page continues to tell workers that "some states prohibit employers from even asking about criminal history until later in the hiring process" and to check with a state or local Fair Employment Practice Agency. If you have had a record sealed or set aside, our guide to state expungement laws covers how those rules differ by jurisdiction.

Federal hiring rules are unchanged. The EEOC's resource page describes the Fair Chance to Compete for Jobs Act as a federal law, similar to state and local ban-the-box laws, that makes it illegal to ask applicants about their criminal history before making a conditional job offer. That statute is not EEOC guidance and was not part of this vote.

The statutory good-faith reliance defense is unchanged, but it may not reach this guidance. Title VII provides that in an action based on an alleged unlawful employment practice, no person is subject to liability for an act done "in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission," if the person pleads and proves it, and that such a defense, once established, bars the action "notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect." 42 U.S.C. 2000e-12(b). That provision is untouched by the vote. Whether it reaches the 2012 guidance is a separate question, and the EEOC's own regulation narrows it sharply. Under 29 C.F.R. 1601.93, "[o]nly" an opinion letter signed by the Legal Counsel or the General Counsel on behalf of and as approved by the Commission, matter "published and specifically designated as such in the Federal Register," or a qualifying determination of no reasonable cause "may be relied upon as a 'written interpretation or opinion of the Commission' within the meaning of section 713 of title VII." The 2012 guidance was not an opinion letter and was never published and designated in the Federal Register. An employer should not assume the guidance qualifies for this defense. The statute also sets conditions an employer must plead and prove, so this is a defense to raise, not an automatic shield.

And one thing genuinely did change. The EEOC's enforcement framework for these screens is gone. The EEOC's question-and-answer document describes two circumstances in which the Commission believed employers may consistently meet the job-related and consistent-with-business-necessity defense: validating the exclusion under the Uniform Guidelines on Employee Selection Procedures, or developing a targeted screen that considers at least the nature of the crime, the time elapsed and the nature of the job, and then providing an opportunity for an individualized assessment for people the screen excludes. That document is still posted, and it notes that although Title VII does not require individualized assessment in all circumstances, a screen without one "is more likely to violate Title VII." What is gone is the Commission's formal enforcement guidance. The subordinate technical assistance documents that describe the same structure are still posted and carry no notice of the rescission, including that Q&A, the 2014 brochure and the agency's plain-language resource page, which still tells employers to weigh the nature and seriousness of the offense, the time that has passed and the nature of the job. The Q&A and the brochure each state on their face that their contents do not have the force and effect of law, and none of these documents is the guidance the Commission voted to withdraw.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The practical weight of this rescission is smaller than the headline suggests, and the reason is the 2019 Fifth Circuit decision. Once a court of appeals held that the guidance was a substantive rule the EEOC had no authority to issue, and ordered that the agency could not treat it as binding in any respect against the plaintiff state, the document's standing as a compliance anchor was already compromised. A guidance document was never a statute; after Texas v. EEOC it was a contested interpretation that one circuit had declared beyond the agency's power.

What the guidance did supply was predictability. It told an employer what the agency investigating its hiring screen expected to see, and it gave applicants a vocabulary for what a defensible screen looks like. Removing it does not change the legal test in 42 U.S.C. 2000e-2(k)(1)(A)(i); it removes the agency's published explanation of how it applies that test to criminal records. Employers now argue job-relatedness to investigators and courts without an enforcement guidance carrying the Commission's authority behind it, and so do charging parties. What remains on eeoc.gov are technical assistance documents that state on their face that they do not have the force and effect of law.

The procedural history deserves attention on its own. The Commission noticed this item for an open public meeting at which, under the Sunshine Act notice, the public would be able to observe its deliberations and voting. That meeting is now listed as cancelled, and the press release places the vote on October 28, two days before the noticed date. The agency has not said when the meeting was cancelled, and cancelled meeting notices are common in its recent record: five of the ten most recent entries on its meetings page are cancellations. Combined with the absence of any Federal Register notice or comment period and the absence of a posted vote record, the public record of how this decision was reached is, as of today, thin. We will update this article when the EEOC posts its October 2026 vote table.

We are not predicting how investigators or courts will handle particular screens. That depends on facts, on the circuit, and on state law that the EEOC does not control.

How This Affects You

If you are an applicant or employee, the statutory protections you had on October 27 you still have. An employer may not reject you because of your race or national origin, and that holds whether or not criminal history is in the mix. 42 U.S.C. 2000e-2(a). A screening policy that disproportionately excludes a protected group and is not job related and consistent with business necessity remains challengeable. 42 U.S.C. 2000e-2(k). If a background report drove the decision, the employer owed you a copy of that report and a written statement of your rights before acting on it, and an adverse-action notice after. 15 U.S.C. 1681b(b)(3)(A); 15 U.S.C. 1681m(a). Errors in a report are worth disputing on their own footing, and it helps to know whether arrest records are public in your state before you assume what an employer can see.

If you are an employer, the EEOC release expressly says you are not required to abandon lawful practices you adopted in response to the 2012 guidance. A structured, job-related screen with an individualized review step was not made unlawful by the rescission, and it still speaks directly to the statutory defense you would have to establish in a disparate impact case. The exposures that have not moved are a blanket exclusion that cannot be tied to the duties of the position, and FCRA procedure. State and local fair-chance obligations are independent of this vote and may be the binding constraint on your process regardless of what the EEOC does.

This is general legal information, not legal advice. Hiring rules turn on your jurisdiction, your industry, the position at issue and the specific facts of a decision. Nothing here creates an attorney-client relationship. If a hiring decision involving your criminal record may have been unlawful, or if you are an employer revising a screening policy, consult an employment lawyer licensed in your state.

Related articles

• Background check laws in all 50 states
• Texas background check rules
• Florida background check rules
• At-will employment by state
• Expungement laws by state

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Last updated: 2026-10-30. This is a developing story; details verified as of 2026-10-30.

Frequently Asked Questions

Does the rescission mean employers can now use criminal records however they want?

No. The EEOC rescinded a guidance document, not a statute. Title VII still prohibits disparate treatment under 42 U.S.C. 2000e-2(a) and still provides for disparate impact liability under 42 U.S.C. 2000e-2(k), and the EEOC's own press release states that Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.

When did the rescission take effect?

Immediately. The EEOC's October 29, 2026 press release says the Commission voted the previous day, October 28, and that the rescission is effective immediately. There was no delayed effective date and no Federal Register notice.

Do employers still have to follow the FCRA background check steps?

Yes. The Fair Credit Reporting Act is a separate federal statute that the EEOC does not administer. An employer must still give a standalone written disclosure and get written authorization before obtaining a report under 15 U.S.C. 1681b(b)(2)(A), provide a copy of the report and a written description of the applicant's rights before taking adverse action under 15 U.S.C. 1681b(b)(3)(A), and send the adverse-action notice required by 15 U.S.C. 1681m(a).

What happens to state ban-the-box and fair-chance laws?

Nothing in the EEOC announcement addresses state or local law. Fair-chance hiring statutes, ban-the-box ordinances and lookback limits come from state legislatures and city councils, and they continue to apply on their own terms. For many employers these state rules are the more specific constraint on when criminal history may be requested.

Had a court already limited this guidance?

Yes, in part. In State of Texas v. EEOC, No. 18-10638, decided August 6, 2019, the U.S. Court of Appeals for the Fifth Circuit held that the guidance was a substantive rule subject to the notice-and-comment requirement of the Administrative Procedure Act and that the EEOC overstepped its statutory authority in issuing it. The court affirmed an injunction as modified, clarifying that the EEOC and the Attorney General may not treat the guidance as binding in any respect, in enforcement actions against the State of Texas.

How many commissioners voted for the rescission?

The EEOC has not said. The agency's Commission Votes page lists monthly vote tables only through September 2026, and no October 2026 table has been posted as of October 30, 2026. The EEOC also noticed an open public meeting on the rescission for October 30 and then listed that meeting as cancelled. Three of the Commission's five seats are currently filled.

Can I still find the 2012 guidance document?

Not on the EEOC's website. The URL that hosted the Enforcement Guidance now returns a page-not-found error, and the document no longer appears in the EEOC's guidance library. Several companion documents remain posted as of October 30, 2026, including the EEOC's question-and-answer page about the guidance and its 2014 brochure on arrest and conviction records in employment.

Does an employer lose its defense for following the old guidance?

Title VII contains a good-faith reliance defense. Under 42 U.S.C. 2000e-12(b), a person who pleads and proves that an act was done in good faith, in conformity with, and in reliance on a written interpretation or opinion of the Commission is not subject to liability, and that defense bars the action even if the interpretation is later modified or rescinded. The statute places the burden on the person raising it, so it is a defense to establish rather than an automatic protection.