Quick Hits

• The EEOC voted to rescind its 2012 enforcement guidance related to using arrest and conviction records in employment decisions.
• The Commission stated that the agency voted 2-to-1 in favor of rescinding on October 28, 2026, and that the rescission is effective immediately.
• The 2012 guidance had indicated that employers’ use of information on arrest and conviction records could implicate their obligations under Title VII of the Civil Rights Act of 1964—under both disparate treatment or disparate impact theories.

EEOC Chair Andrea Lucas stated that the vote to rescind “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.” According to Lucas, “Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. The EEOC will continue to vigorously enforce these protections in accordance with the law.”

The U.S. Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) received a draft final rule that would rescind the previous guidance, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act.” Since the publication of the 2012 guidance, the federal government has pivoted away...

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