On October 29, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced it had rescinded its 2012 enforcement guidance addressing employers’ consideration of arrest and conviction records under Title VII of the Civil Rights Act of 1964 (the “Guidance”), effective immediately. For employers, the key takeaway is not to overreact: the EEOC withdrew Guidance, not the underlying law. Hastily dismantling lawful, job-focused screening safeguards or expanding automatic exclusions could increase—rather than mitigate—exposure. The EEOC’s announcement provides a reason for employers to review and shore up existing policies thoughtfully, not reflexively roll them back.
Background: The 2012 Criminal History Guidance
The Guidance addressed both differential treatment based on race or national origin, and neutral criminal history policies that disproportionately excluded a protected group without being job related and consistent with business necessity. It also distinguished arrests from convictions, explaining that an arrest alone did not establish criminal conduct, but that the underlying conduct could support an employment decision if it made the individual unfit for the position.
The Guidance encouraged employers to take a targeted approach to criminal records by considering the nature and seriousness of the offense, the time elapsed since the offense or completion of the sentence, and the nature of the position. It described targeted screening with an opportunity...
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