EEOC Rescinds 2012 Guidance on Criminal Background Checks
The federal agency has voted to remove its 2012 enforcement guidance, shifting its focus on disparate treatment rather than disparate impact in criminal record usage.
The Equal Employment Opportunity Commission (EEOC) held a 2‑to‑1 vote on October 28, 2026 to rescind the 2012 enforcement guidance that had linked employers’ use of arrest and conviction records to Title VII compliance. The rescission is effective immediately and signals a continued emphasis on disparate treatment over disparate impact in the agency’s enforcement of Title VII. While private litigants may still pursue disparate impact claims under Title VII, the EEOC will no longer consider the 2012 guidance a basis for enforcement. Employers should therefore review their background‑check policies to ensure they remain compliant with the federal Fair Credit Reporting Act (FCRA) and state or local regulations, particularly those relating to “Ban the Box.” Firms can anticipate private lawsuits will still raise both disparate treatment and disparate impact theories, but the EEOC’s enforcement priorities have shifted. This development is likely to affect practice for over 50 % of employment law firms handling background‑check due diligence, vendor selection and litigation continuity plans.