EEOC Proposes Ending 2012 Criminal Background Check Enforcement Guidance
On Oct. 6, 2026, EEOC sent a draft rule to OMB to rescind its 2012 criminal background check guidance.
Why it matters: Legal teams and employers must revise compliance strategies as EEOC plans to stop enforcing disparate impact claims linked to criminal record use. This affects how hiring discrimination is addressed legally, impacting risk management and hiring protocols.
- EEOC submitted a draft rule to OMB on October 6, 2026, seeking to rescind the 2012 criminal background check enforcement guidance.
- The 2012 guidance addressed potential disparate impact discrimination under Title VII from using arrest and conviction records in hiring.
- Rescission would end EEOC pursuit of disparate impact claims but leave disparate treatment claims—intentional discrimination—enforceable.
- Federal Fair Credit Reporting Act (FCRA) and state laws on criminal background checks in hiring remain in effect.
- Littler’s analysis and an independent Georgetown Law expert confirm significant implications for legal compliance and employment practices.
On October 6, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) formally submitted a draft final rule to the Office of Management and Budget (OMB Regulatory Agenda) proposing to rescind its 2012 enforcement guidance on the use of arrest and conviction records in employment decisions.
The 2012 guidance clarified how Title VII of the Civil Rights Act applies when employers use criminal background checks, emphasizing that policies may result in disparate impact discrimination if they disproportionately affect Black and Hispanic applicants unless justified by business necessity.
Rescinding the guidance means the EEOC will no longer actively pursue disparate impact enforcement involving criminal record use. However, disparate treatment claims—allegations of intentional discrimination based on criminal records—will remain enforceable under Title VII.
Legal experts highlight that this shift requires General Counsels, HR, and legal compliance teams to reassess risk management and hiring policies. "Employers must maintain policies that comply with applicable laws but can expect less EEOC focus on testing for disparate impact on criminal background checks," said a Littler analyst in their recent analysis. Georgetown University Law Center’s experts also note this change may increase private disparate impact litigation risk, as federal enforcement recedes.
Importantly, this rescission does not affect compliance with the federal Fair Credit Reporting Act (FCRA) or state and local laws regulating criminal record use in hiring. Those requirements remain essential for employers to follow.
The EEOC’s draft rule is under OMB review, with no finalized effective date announced. Legal and HR professionals should monitor further developments and update policies accordingly.
By the numbers:
- October 6, 2026 — EEOC submitted the draft rule to OMB
- 2012 — Year when the original EEOC enforcement guidance was issued
- 100% — Disparate treatment claims remain fully enforceable despite rescission
Yes, but: While the EEOC steps back from disparate impact enforcement on criminal background checks, private lawsuits may increase, requiring careful compliance and risk monitoring by employers.
What's next: The OMB review process will determine when the rescission takes effect; employers should watch for the final rule and potential new guidance from EEOC.