On October 28, 2026, the United States Equal Employment Opportunity Commission (EEOC) voted to rescind its 2012 enforcement guidance on employers’ consideration of arrest and conviction records.
EEOC Chair Andrea Lucas stated in the press release issued on October 29, 2026, “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.”
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.
The EEOC is likely to continue refraining from pursuing disparate impact charges; 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 directly impact the federal Fair Credit Reporting Act (FCRA) and other state or local laws governing the use of criminal history information.
Learn more about the rescission here. For possible next steps for employers, please refer to our previous blog post 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.
