On October 6, 2026, the U.S. Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) received a draft final rule from the U.S. Equal Employment Opportunity Commission (EEOC) that would rescind its 2012 enforcement guidance on employers’ consideration of arrest and conviction records.
If OIRA approves the draft rule, the EEOC is likely to publish the final rule and revoke the 2012 guidance. Allegations of disparate treatment in background checks are expected to remain viable, as they are still believed to potentially violate Title VII. Currently, the EEOC has not indicated that it will cease investigating or pursuing such cases.
Last year, the EEOC reportedly directed staff not to investigate or pursue disparate impact charges. If this guidance is rescinded, it is anticipated that the EEOC’s stance will remain unchanged. However, claims of disparate impact based on criminal histories may still be pursued through private lawsuits.
A potential challenge could indirectly impact private lawsuits as employers may argue that the rescission affects existing Title VII disparate impact case law, while plaintiffs may contend that the rescission does not alter current legal interpretations.
The rescission is not expected to impact the federal Fair Credit Reporting Act (FCRA) and other state or local laws governing the use of criminal history information.
In the interim, it is recommended employers consider the following action steps:
- Review background check policies to ensure they address legitimate business risks and job relevance.
- Document reasons for excluding applicants based on specific criminal offenses.
- Train hiring managers on the appropriate use of criminal history information and ensure decision-making is consistent and non-discriminatory.
- Conduct individualized assessments, especially for marginally related offenses and offenses that occurred several years ago.
- Monitor state and local law developments.
Read more about the draft final rule here.
Legal Disclaimer: Validity Screening Solutions provides this material for educational and informational purposes only, and shall not be construed as legal advice, express or implied. For questions regarding your organization’s practices and compliance with applicable laws, please consult with your legal counsel.
