EEOC Rescinds 2012 Guidance on Arrest and Conviction Records
The EEOC's Oct. 28, 2026 vote withdraws its 2012 guidance on criminal-history screening, signaling no race or national-origin disparate-impact enforcement — while Title VII, FCRA and stricter state fair-chance laws remain in force.
Per Jackson Lewis, the EEOC voted on Oct. 28, 2026 to withdraw its 2012 "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII," effective immediately. The withdrawn guidance had recommended that employers not ask about convictions on applications, limit inquiries to job-related convictions, and use targeted screens plus individualized assessment (the Green factors) before excluding candidates. Chair Andrea Lucas said the agency will not pursue Title VII disparate-impact claims based on race or national origin arising from criminal-history inquiries, framing the vote as enforcing Title VII within the limits of Congress's authority.
This is not deregulation. Title VII still prohibits intentional discrimination and proxy requirements; FCRA notice obligations and third-party vendor duties are untouched; and state and local fair-chance laws — which can mandate waiting periods, ban-the-box sequencing and individualized assessments — remain in force, leaving multi-state employers operating under a stricter floor than federal law. Practical next steps: audit screening and exclusion criteria for disparate-impact exposure, re-map applicable state and local requirements, retrain decision-makers, and document job-relatedness. Watch the EEOC's separate proposal to rescind employer voluntary affirmative action plan guidance, and whether private plaintiffs fill the enforcement gap.