Labor & Employment Developments Blog

On October 6, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) submitted a draft proposal to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (“Guidance”). The proposed rescission is part of a broader federal shift from disparate impact theories that began in 2025 and comes on the heels of the EEOC’s June 2026 vote to rescind its affirmative action guidelines. While the change would signal new enforcement priorities for the agency, employers would still need to comply with federal, state, and local laws.

In 2012, the EEOC issued the Guidance to address concerns that the consideration of criminal records and subsequent elimination of certain candidates would negatively impact some protected classes more than others. In particular, the EEOC warned that screening could violate Title VII in two ways: through disparate treatment (intentional discrimination) or through disparate impact (a neutral policy that disproportionately harms a protected group). For disparate impact claims, the Guidance applied the traditional three-step framework requiring a plaintiff show that a specific practice causes a disparate impact. Then, the burden shifted to the employer to show that the practice is job-related and consistent with business necessity, typically by weighing: the nature and gravity of the offense, the time elapsed since the offense or sentence, and the nature of the job. The Guidance added nine individualized assessment factors. Even if the employer meets its burden, the plaintiff can still prevail by identifying a less discriminatory alternative. The Guidance also cautioned against relying on arrests alone and discouraged blanket disqualification policies. Over the years, many employers have adopted these policies.

Now, the Guidance is on the chopping block. Regardless of the Guidance’s fate, the proposal is a clear signal from the EEOC of its intentions moving forward. While the EEOC will likely continue pursuing disparate treatment claims, it will likely be less inclined to advance disparate impact charges. Instead, the EEOC will likely leave complainants who exhaust the EEOC charge process to pursue disparate impact claims in court. The proposed recission, however, will not impact other laws already in place and affording similar protections. The Fair Credit Reporting Act (“FCRA”), state antidiscrimination laws, and "ban-the-box" and fair chance hiring laws adopted in many jurisdictions all provide additional protections to employees and applicants. These laws vary by jurisdiction but often provide greater protection than the Guidance. 

Regardless of whether the Guidance is rescinded, employers should be mindful of potential compliance issues. To avoid liability, employers should continue training human resources and hiring managers on best practices, reviewing updates to federal, state, and local laws, and updating policies to remain compliant.

The KMK Law Labor & Employment team will continue to monitor developments as this proposed recission moves forward, and is here to assist employers in evaluating the impact of any changes on their compliance programs and internal practices.