October 28, 2026
EEOC Rescinds Nearly 15-Year-Old Guidance on Employers’ Use of Arrest & Conviction Records
On Wednesday, October 28th, The U.S. EEOC voted 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 (Guidance).” The rescission is effective immediately. The Guidance has already been removed from the EEOC’s website, although some links are still working if you want to walk down memory lane.
So, now if you receive information about an employee’s or applicant’s conviction or arrest history, can you use it to take an adverse employment action such as firing or not hiring the individual? If so, what factors should you consider? Under the 2012 Guidance, we had three key considerations:
- the nature and gravity of the offense or offenses;
- the time that has passed since the conviction [or arrest]; and
- the nature of the job held or sought.
What now? Talk to your company’s legal counsel. The EEOC reminds us, “Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. The EEOC will continue to vigorously enforce these protections in accordance with the law.”
Remember other applicable laws! If you obtain background reports from a third-party “consumer reporting agency,” remember to comply with the notice requirements under the federal Fair Credit Reporting Act, as well as any applicable state laws.
