Takeaways
- The EEOC voted to rescind its long-standing 2012 Guidance that recommended targeted, individualized reviews regarding job applicants and employees’ arrest and conviction records.
- Rescission reaffirmed the agency’s enforcement posture that it will not pursue Title VII disparate impact claims based on race or national origin arising, in this instance, from criminal history inquiries.
- Employers still need to be proactive and take steps to comply with Title VII and state and local laws.
The Equal Employment Opportunity Commission (EEOC) voted on Oct. 28, 2026, to withdraw its 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII” (2012 Guidance). The decision took effect immediately.
Background: 2012 Guidance
The EEOC’s 2012 Guidance sought to provide employers with a recommended roadmap to EEOC enforcement and employment decision-making for considering individuals who have arrest or conviction records.
As part of the 2012 Guidance, employers were reminded about the two theories of discrimination:
- Intentional discrimination (involving treatment of an individual)
- Disparate impact discrimination (invol...