EEOC Draft Rule Would Rescind 2012 Criminal Background Check Guidance
OIRA received an EEOC draft final rule on October 6, 2026 that would withdraw the 2012 guidance tying criminal-history screening to Title VII disparate-impact theory, reshaping background-check defense frameworks for multistate employers.
Per Ogletree Deakins, the EEOC submitted a draft final rule to OMB's Office of Information and Regulatory Affairs on October 6, 2026, seeking to rescind its 2012 enforcement guidance on the use of arrest and conviction records in hiring. The agency has signalled it likely will not reissue replacement guidance. Approval remains pending with OIRA, so the rescission is not final.
The practical stake is the framework many employers have relied on for fourteen-plus years: the three Green factors plus nine individualized assessment factors used to establish that a screening practice is job-related and consistent with business necessity. The guidance also confirmed that plaintiffs may still prevail by identifying a less discriminatory alternative. Employers should assume disparate-treatment allegations remain viable and that private disparate-impact litigation continues despite reduced EEOC enforcement, since the theory rests on Title VII and case law rather than agency guidance. Rescission leaves a gap that case law must fill, and courts may weigh it either way.
Unaffected: FCRA obligations and the expanding, inconsistent state and local restrictions. Counsel should audit policies, map state-specific limits, and prepare managers for compliance without relying on the rescinded guidance as a safe harbour.