EEOC Rescinds 2012 Criminal-Record Screening Guidance for Title VII
The EEOC voted on October 28, 2026 to rescind its 2012 arrest and conviction-record screening guidance, but the agency says it is not reinstating superseded policy statements and private disparate-impact plaintiffs remain unconstrained.
According to Sullivan & Cromwell, the EEOC voted on October 28, 2026 to rescind its 2012 enforcement guidance addressing employers' consideration of arrest and conviction records under Title VII. The agency framed the action as not reinstating policy statements superseded by the 2012 guidance and not requiring employers to abandon lawful practices adopted in response to it. The withdrawn guidance had directed employers to weigh the nature and gravity of the offense, the time since the offense or completion of sentence, and the nature of the job, and to conduct individualized assessments; it also stated that an arrest alone does not prove the underlying conduct. Chair Andrea Lucas said the rescission "reaffirms the agency's commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC's authority," consistent with an agency emphasis on intentional-discrimination theories over disparate impact. The rescission does not amend Title VII, so private plaintiffs can still pursue disparate-impact claims. Employer takeaways: apply criminal-history criteria consistently, tie exclusions to job relatedness, avoid blanket or arrest-only exclusions, check state and local screening restrictions, and satisfy FCRA disclosure, authorization and adverse-action requirements. Watch for follow-on EEOC rulemaking or state-level changes; this cluster contains a single firm blog, so the vote record is not independently confirmed here.