EEOC Draft Final Rule Would Rescind 2012 Arrest and Conviction Guidance
OMB received a draft final rule on October 6, 2026 that, once cleared, would let the EEOC repeal its 2012 arrest-and-conviction guidance on publication — but disparate-treatment and disparate-impact exposure survives.
On October 6, 2026, the Office of Management and Budget confirmed receipt of a draft final rule from the EEOC titled "Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act." Because the vehicle is a final rule, the EEOC is expected to publish it and repeal the guidance effective upon publication once OMB approves it, although the review timetable is unclear and the proposal is not final.
The 2012 guidance has shaped employer screening practice for roughly 15 years, most visibly the "targeted screen" keyed to the three Green factors drawn from Green v. Missouri Pacific Railroad (8th Cir. 1975). Repeal would not, however, license employers to consider criminal records freely.
Three points matter. Disparate-treatment claims — screening one protected class more harshly than another — remain viable and do not depend on the guidance. Disparate-impact claims remain available to private plaintiffs under Title VII notwithstanding the EEOC's stated enforcement posture in its 2026 National Enforcement Plan. And many state anti-discrimination statutes independently preserve disparate-impact liability.
Action: track OMB review and any Federal Register notice, and audit screening criteria against applicable state law before relaxing standards.