Rule change3 min read

The EEOC dropped its 2012 criminal records guidance. Here is what still applies

The EEOC has rescinded its 2012 guidance on using arrest and conviction records in hiring, effective immediately and with no replacement. Title VII, the FCRA and state and local fair chance laws still apply, so the practical rules for criminal background checks change less than the headlines suggest.

Based on reporting by the U.S. Equal Employment Opportunity Commission and HR Dive. All sources

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On October 29, 2026, the U.S. Equal Employment Opportunity Commission announced that it had voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. The rescission took effect immediately. The Commission did not issue replacement guidance.

For fourteen years, that document shaped how employers used criminal records in hiring: look at the offense, the time since it happened and the job, give the candidate a chance to explain, and don't treat an arrest as proof of wrongdoing.

The guidance is gone. Title VII, the FCRA and state fair chance laws are not.

What changed

The EEOC withdrew its own guidance document. According to the Commission, the rescission does not bring back the older policy statements that the 2012 guidance replaced, and it does not require employers to drop lawful practices they adopted because of it.

EEOC Chair Andrea Lucas said that rescinding the guidance "does not give employers license to engage in unlawful discrimination." The Commission said it will keep enforcing Title VII's bans on race and national origin discrimination, including requirements used as a proxy for intentional discrimination.

What did not change

Title VII. The law itself still applies. Disparate impact is written into the statute, so applicants can still bring claims even where the agency takes a narrower view.

The FCRA. Employers who use a background check company still need a standalone disclosure, the candidate's written authorization, a pre-adverse action notice with a copy of the report and the FCRA Summary of Rights, and a final adverse action notice.

State and local fair chance laws. Laws such as the California Fair Chance Act, the New York City Fair Chance Act and the Illinois Employee Background Fairness Act set their own timing and assessment rules. The EEOC's decision does not touch them.

From the 2012 guidance to the vote

From the 2012 guidance to the vote
  1. Guidance adopted

    The EEOC approves its Enforcement Guidance on arrest and conviction records under Title VII.

  2. A reference for employers

    Offense, time elapsed and the job become the standard way to weigh a record, and many fair chance laws build on the same idea.

  3. Rescinded

    The EEOC announces the vote to rescind the guidance, effective immediately, with no replacement.

  4. What stays

    Title VII, the FCRA and state and local fair chance laws continue to apply.

14years the guidance shaped how employers weighed criminal records

Employer checklist

What employers should do now

The practical answer for most employers is to keep a screening process that is job-related, consistent and documented, whatever the federal guidance says.

  1. Don't rewrite your policy overnight. The EEOC says employers are not required to drop lawful practices adopted under the 2012 guidance.
  2. Keep criteria tied to the role. Decide in advance which offenses matter for which jobs, such as driving offenses for drivers and violent or theft offenses for roles in customers' homes.
  3. Treat arrests and convictions differently. An arrest alone does not show that a person did anything.
  4. Keep the FCRA steps. Disclosure, authorization, pre-adverse notice with the report and Summary of Rights, a waiting period and a final notice.
  5. Check every location's rules. Fair chance laws vary by state and city, and the strictest rule where the job is located applies.
  6. Write down the decision. Record what the report showed, what the candidate said and why the record did or did not matter for the job.

PROFID returns the records with the case details and lets the candidate see and dispute their report. The hiring decision, and the notices that come with it, stay with the employer.

Questions employers ask

Is individualized assessment still required?

The EEOC no longer has guidance recommending it, but several state and local fair chance laws require an individualized assessment before an employer withdraws an offer. Check the rules for each location where you hire.

Can employers now reject everyone with a criminal record?

Blanket bans still carry risk under Title VII, and many state and local laws restrict them. A rule tied to specific offenses and specific roles is easier to defend.

Does this change anything in the FCRA?

No. The EEOC enforces Title VII, not the FCRA. Disclosure, authorization and adverse action requirements are unchanged.

Should we stop using the forms we built around the 2012 guidance?

Not necessarily. The EEOC said employers are not required to abandon lawful practices adopted under the guidance, and those forms often also satisfy state fair chance requirements.

Screen by role, not by blanket rules

Compare screening packages built for each role and location.

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General information based on the EEOC announcement and public reporting as of November 6, 2026. Not legal advice.

Sources

  1. EEOC: EEOC votes to rescind enforcement guidance on arrest and conviction records
  2. HR Dive: EEOC votes to rescind conviction and arrest record guidance
  3. J. J. Keller: EEOC rescinds guidance; federal, state and local laws still apply
  4. FTC: Background checks — what employers need to know

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