EEOC Rescinds 2012 Criminal Background Check Guidance
The EEOC rescinded its 2012 guidance on criminal background checks in hiring.
Why it matters: Employers need to reassess policies on criminal background checks amid this regulatory change. Legal counsel must update compliance advice related to Title VII and fair-chance hiring laws.
- On October 28, 2026, the EEOC voted to rescind its 2012 Enforcement Guidance on criminal records, effective October 29.
- The 2012 guidance required individualized assessments considering offense nature, time elapsed, and job relevance to reduce discrimination risks.
- The EEOC emphasized rescission doesn’t permit unlawful discrimination under Title VII, which prohibits race or national origin bias.
- Employers must still comply with Title VII, the Fair Credit Reporting Act (FCRA), and state/local fair-chance hiring laws.
- The EEOC did not reinstate superseded prior policies, clarifying a regulatory shift without returning to past enforcement approaches.
On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted unanimously to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. The change took effect immediately on October 29, 2026.
The 2012 guidance advised employers to conduct individualized assessments when considering criminal history. This included evaluating the nature and gravity of the offense, the time elapsed since the offense, and how it relates to the job’s duties. The goal was to reduce risk of disparate impact discrimination — practices that may be neutral but disproportionately affect protected groups — under Title VII of the Civil Rights Act.
EEOC Chair Andrea Lucas stated, "Rescinding this guidance does not give employers license to engage in unlawful discrimination." She clarified that Title VII's prohibition on discrimination based on race, color, or national origin remains in full force. Employers must avoid employment practices that serve as proxies for discrimination.
The Commission noted this rescission represents a regulatory shift but does not restore the policies that preceded the 2012 guidance. In practical terms, this means employers should not assume older, less structured approaches to criminal background checks are now valid.
Employers must also continue to comply with the Fair Credit Reporting Act (FCRA), which regulates the use of consumer reports — such as background checks — in employment decisions. FCRA requires employers to provide applicants with a copy of their background report and a summary of rights before taking adverse action.
Moreover, many states and localities enforce fair-chance hiring laws. These laws limit when and how employers may inquire about or consider criminal history, placing additional compliance obligations beyond federal rules.
Legal teams advising employers should update policies to ensure compliance across these regulatory frameworks, balancing nondiscrimination with lawful screening practices in hiring.
By the numbers:
- October 28, 2026 — EEOC rescinded its 2012 guidance
- October 29, 2026 — Rescission effective date
- 2012 — Year EEOC originally issued the criminal background check guidance