The EEOC Rescinds its 2012 Guidance on Using Arrest and Conviction Records in Hiring Decisions
The EEOC's October 29, 2026, rescission is a significant change in federal employment enforcement policy, particularly for employers that conduct criminal background checks.
However, the rescission does not mean employers can automatically reject applicants with criminal records without considering potential discrimination under Title VII.
The important distinction is between eliminating the EEOC's interpretive guidance and changing the underlying law. Congress has not repealed Title VII, and employers remain subject to its prohibitions against employment discrimination.
1. What did the 2012 EEOC guidance require?
The original guidance, titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, was issued on April 25, 2012.
It was intended to explain how employers' use of criminal history could violate Title VII, even when their screening policies appeared neutral.
It focused on two theories of discrimination:
Disparate treatment: An employer intentionally treats applicants differently because of race, color, national origin, or another Title VII-protected characteristic.
For example, an employer rejects a Black applicant because of a misdemeanor conviction but hires a similarly qualified white applicant with a comparable conviction.
That remains unlawful.
Disparate impact: A facially neutral employment policy disproportionately excludes individuals in a protected group and cannot be justified as job-related and consistent with business necessity.
For example, a company categorically refuses to hire anyone with any felony conviction, regardless of the nature of the offense, how long ago it occurred, or the responsibilities of the position.
The 2012 guidance warned that broad criminal-history exclusions could create disparate-impact liability, particularly given documented racial disparities in arrest and incarceration rates.
The three Green factors
A central component of the guidance was the use of the Green factors, derived from the Eighth Circuit's decision in Green v. Missouri Pacific Railroad.
Employers were encouraged to consider:
Nature and gravity of the offense: What happened, and how serious was it?
Time elapsed: How long has it been since the offense, conviction, or completion of the sentence?
Nature of the job: What are the actual duties, responsibilities, and risks associated with the position?
The EEOC also recommended individualized assessments, allowing applicants to explain circumstances such as rehabilitation, employment history, or inaccuracies in their records.
Importantly, the guidance did not establish an absolute legal requirement that every employer conduct an individualized assessment in every case. It described individualized assessment as a way to reduce the likelihood that a screening policy would improperly exclude qualified candidates.
The guidance also distinguished arrests from convictions. An arrest alone does not establish that misconduct occurred, although employers could consider reliable evidence of the underlying conduct when relevant to the job.
2. What changed on October 28, 2026?
The EEOC voted 2–1 to rescind the guidance, effective immediately. The agency's October 29 announcement confirms that employers are not required to abandon lawful practices developed in response to the 2012 guidance.
The most significant change is likely how the EEOC investigates and pursues disparate-impact claims involving criminal background checks.
The current administration has shifted federal enforcement priorities away from disparate-impact theories. Legal analysts expect the EEOC to focus more heavily on intentional discrimination in this area.
But private plaintiffs can still bring disparate-impact claims under Title VII, and courts remain responsible for applying the statute and binding case law.
3. What should employers actually do?
My recommendation for employers would be to maintain defensible criminal-background-check procedures rather than immediately rewriting them.
Continue evaluating job relevance.
A financial fraud conviction may be relevant to a controller position but substantially less relevant to a warehouse associate. Employers should be able to explain why a particular conviction matters for a particular job.
Maintain consistent decision-making.
Use documented criteria for comparable positions. Inconsistent treatment of applicants with similar criminal histories can create evidence of intentional discrimination.
Keep individualized reviews where practical.
Even without the 2012 guidance, allowing applicants to explain relevant circumstances can reduce mistakes and help employers make better hiring decisions.
Follow FCRA adverse-action requirements.
When using a third-party consumer reporting agency, employers generally must provide the required pre-adverse-action notice, report copy, and summary of rights before taking adverse action, followed by the required adverse-action notice.
Review applicable state and local restrictions.
Ban-the-box rules, limits on considering certain convictions, and procedural requirements may remain applicable regardless of the EEOC's action.
4. A practical example
Consider an employer hiring for a $75,000 accounting position.
An otherwise qualified candidate has a 10-year-old felony conviction for embezzlement.
Under the 2012 guidance, the employer was encouraged to consider the seriousness of the offense, the time elapsed, and the job's responsibilities, potentially followed by an individualized assessment.
After the rescission, the employer is no longer operating under that particular EEOC guidance.
However, the employer still needs to consider whether its screening practices comply with Title VII, applicable state laws, and other requirements.
An employer could potentially justify excluding this applicant because the conviction directly relates to the financial responsibilities of the position. That would depend on the facts and applicable law.
Compare that with rejecting every applicant who has ever been convicted of any felony, for any position. Such a policy can still create legal exposure, including disparate-impact litigation.
5. What about North Carolina employers?
For employers operating in North Carolina, the rescission does not itself create a new statewide criminal-background-check requirement or eliminate existing federal obligations.
North Carolina does not have a generally applicable private-sector ban-the-box statute, although specific public-sector requirements and occupational restrictions exist. Employers operating across state lines also need to account for more restrictive jurisdictions.
For a North Carolina-based business, I would prioritize FCRA compliance, consistent hiring standards, job-related screening criteria, and documentation rather than wholesale policy changes.
6. The bigger HR takeaway
The 2012 guidance was never itself a statute or binding regulation. In fact, the original EEOC document expressly stated that it did not have the force and effect of law.
Its rescission therefore changes the EEOC's formal interpretation and enforcement framework, not the text of Title VII.
This is an important distinction for HR professionals advising leadership teams that might interpret the announcement as permission to implement blanket criminal-history exclusions.
My recommendation: If an employer already uses the Green factors and individualized assessments, there is little immediate operational benefit to abandoning them. They remain useful risk-management practices, even if the EEOC no longer endorses them through the rescinded guidance.
The more productive exercise is reviewing whether existing screening standards are consistent, proportionate to the position, supported by legitimate business reasons, and compliant with all applicable laws.
Need helping determining if your organization’s hiring policies are compliant with North Carolina and federal laws? Reach out to schedule a consultation with me.
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