EEOC Drafts Rule Rescinding 2012 Background-Check Guidance
The EEOC sent OIRA a draft final rule on October 6, 2026 that would withdraw its 2012 guidance on using arrest and conviction records under Title VII, reshaping disparate-impact exposure for multistate employers.
On October 6, 2026, OIRA received a draft final rule from the EEOC that would rescind the agency's 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That guidance had explained how criminal-history screening could trigger disparate treatment and disparate impact liability and endorsed combining the three Green factors with nine individualized assessment factors — a framework many employers have used for roughly fourteen years.
Why counsel should care: rescission would not itself defeat private disparate-impact claims, which rest on Title VII and case law rather than agency guidance, but employers are likely to argue the withdrawal undercuts them. The larger shift is that EEOC disparate-impact enforcement is already paused in favor of right-to-sue letters, while the FCRA and proliferating state and local background-check statutes remain fully in force and are being actively pursued by some state agencies. Compliance risk therefore migrates from federal guidance to a patchy state-law landscape.
Next steps: track OIRA review and the final rule; audit screening policies and manager training against state and local requirements rather than the federal framework; and watch how courts treat the rescission in private litigation.