On October 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing its decision, effective immediately, to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.
This guidance had noted that “even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin.” The now-rescinded guidance had provided employers with federally compliant best practices for implementing and using criminal history checks and records in making employment decisions. By way of example, it recommended that employers evaluate key factors to assess whether an offense might impact the candidate’s suitability for employment: those factors included the specific offense at issue, the amount of time that had passed, and the specific duties of the position.
The rescission of that guidance is emblematic of a broader shift away from enforcement of disparate impact claims by the current administration.
Despite the rescission of this guidance, employers remain subject to the nationwide web of state and city laws that limit how and when employers can run criminal background checks, and how they can use information obtained from such checks.
Whether called “ban the box”, “fair chance” or any other terminology, employers should ensure that they continue to comply with the laws applicable to their jurisdictions if they are using criminal history checks in making hiring and employment decisions.
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