On October 28, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted 2-1 to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The rescission, announced on October 29, is effective immediately. According to the EEOC, the rescission does not restore the policy statements that the 2012 guidance superseded, nor does it require employers to abandon any lawful practices they may have adopted in response to it.
For over a decade, the 2012 guidance had provided a roadmap to the EEOC’s enforcement approach regarding employers that screen and make employment decisions on applicants and employees based on criminal history, including arrests and convictions. It set forth the EEOC’s position that screening can create Title VII risk whether through intentional disparate treatment based on a protected class or where a facially neutral policy nevertheless has the effect of disproportionately excluding members of a protected group (known as disparate impact). It further encouraged individualized risk assessments that weigh three factors: the nature and severity of the offense, time since the offense, and the type of job.
The rescission is the federal government’s latest step in its retreat from disparate impact enforcement. As we previously covered, Executive Order 14281 (Apr. 2025) directed agencies to deprioritize disparate impact liability “to the maximum degree possible.”
While rescinding the guidance may reflect the EEOC’s enforcement priorities going forward, it does not amend Title VII itself. Employers still may not use criminal history as a proxy or pretext for discrimination based on race, national origin, sex, or any other protected characteristic. Applying a background check policy more harshly to one group than another remains unlawful disparate treatment under Title VII.
Requirements Under State and Local Law Remain in Force
Perhaps most significant for employers are existing state and local regulations on the consideration of criminal history in employment decisions, which are unaffected by the EEOC’s action. Commonly called “ban the box” or “fair chance” laws, these measures have been adopted to cover private employers in roughly 17 states (plus D.C.) and more than 20 localities—including New York City, Los Angeles, San Francisco, Philadelphia, Chicago, and Seattle. An even higher number of jurisdictions extend these protections to public sector employees.
The scope of these state and local laws varies widely. Some only bar criminal history questions on applications, while others bar inquiries into criminal history in interviews or at any point before a conditional offer of employment, limit lookback periods, prohibit consideration of certain types of criminal history, and/or impose detailed notice-and-response procedures before adverse action is taken.
For example, New York State Correction Law Article 23-A prohibits discrimination based on criminal history unless:
(1) there is a direct relationship between the offense and the specific employment sought or held by the individual; or
(2) the granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Article 23-A further enumerates specific factors that employers must consider when making employment decisions in response to an applicant’s or employee’s criminal history, including the specific duties and responsibilities of the role and the bearing of the criminal offense on the fitness to perform such duties, the time elapsed since the offense and the age of the individual at the time of the offense, and any information regarding rehabilitation and good conduct since the offense. New York State has further enacted a “Clean Slate” law, which provides for the automatic sealing of certain criminal convictions after a specified time period.
On top of those, the New York City Fair Chance Act imposes additional timing and notice requirements. Under the City law, subject to narrow exceptions, employers may not ask about criminal history or conduct a criminal background check until after extending a conditional offer, which is defined as the point in time that all other screening of non-criminal information has been completed, such that criminal history would be the only remaining obstacle to employment. The NYC law also requires that employers intending to take adverse action based on criminal history conduct a written analysis of the Article 23-A factors noted above and provide a copy of that analysis to the candidate or employee, as well as permit the individual a chance to respond before taking final action.
The California Fair Chance Act bars conviction history inquiries before a conditional offer and prohibits consideration of certain records, such as arrests not resulting in conviction and sealed, dismissed, or expunged convictions. Employers that intend to deny employment on the basis of criminal history face additional procedural steps, and local ordinances add more. For example, the City of Los Angeles requires a written individualized assessment and process before withdrawing an offer. San Francisco’s Fair Chance Ordinance also bars pre-offer inquiries and recent amendments expand its protections, including prohibiting consideration for out-of-state convictions or arrests for conduct that is otherwise lawful in California.
It is also worth noting that in September 2026, attorneys general from fourteen states, including New York and California, also affirmed their enforcement position that disparate impact liability remains enforceable under state law, including in the context of criminal history consideration in employment.
Takeaways
The rescission of the EEOC’s criminal history guidance signals a shifting federal enforcement posture, but employers should be cautious about scaling back their current practices around criminal background checks in response. Federal law still prohibits using criminal history as a proxy for discrimination, and a criminal background check process that takes into account the factors cited in the now-rescinded EEOC guidance (i.e., the nature and severity of the offense, time elapsed since the offense, and the nature and duties of the role) may help mitigate against the risk of such claims.
Critically, state and local fair chance laws also remain in full force, many of which codify individualized risk assessment practices and timing and notice requirements. Employers should continue to tailor their applications, interview practices, background check processes, and adverse action procedures to ensure compliance with the laws of the jurisdictions in which they operate and hire. We will continue to monitor developments in this area and will report on any updates.
Recent Comments