EEOC Moves to Revoke Guidance on Criminal and Arrest Record Considerations in Hiring

The Office of Management and Budget (OMB) announced receipt of a drafted final rule from the Equal Employment Opportunity Commission (EEOC) on October 6, 2026, titled “Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act.” This action could impact how employers consider arrest and conviction records in the screening process, and what screening criteria are included in company policies.

Below is a quick overview of the EEOC’s Enforcement Guidance that is up for repeal, plus factors for employers to consider.

A recap of EEOC’s enforcement guidance for arrest and conviction records

Originally released in 2012, the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act focused on the role Title VII plays in discrimination cases, particularly those involving the consideration of such records.

The Guidance outlined two primary case scenarios:

• Disparate Treatment: A case of intentional discrimination, such as an employer disqualifying applicants of one race for an arrest record but not disqualifying candidates of other races for having the same record.
• Disparate Impact: A case of indirect discrimination, such as an employer adopting a neutral policy of not hiring an applicant with a specific arrest conviction that disproportionately screens out applicants of one protected class more than others.
  • While employers can argue a screening policy is relevant to the role and/or organization, the applicant, or “Title VII plaintiff,” can still rebut that an “alternative employment practice” is in place that, although it may have sincere and valid intentions, is also inadvertently preventing a protected class from receiving equal opportunity for employment.

The Guidance also discusses an employer’s right to establish “business necessity,” or a more specified, “targeted screen” that’s determined by the three Green factors from Green v. Missouri Pacific Railroad:

1. The nature and gravity of the offense
2. The amount of time that has passed since the offense and/or sentence completion
3. The nature of the job held/sought

What this means for employers

Experts warn that repealing this guidance does not mean employers may use arrest and conviction records without liability. An act fitting the definition of “disparate treatment” would likely still violate Title VII, and the EEOC has not released anything to suggest that it will stop investigating and pursuing those charges.

Although EEOC leadership reportedly directed staff not to investigate or pursue any disparate impact-based cases last year, the disparate impact theory is still recognized by the U.S. Supreme Court, codified by Congress in Title VII, and present under many state-level non-discrimination laws, meaning claims may still be brought under federal law and employers remain liable under state and federal law.

EEOC is expected to quickly repeal this guidance if and when the OMB approves it; however, there is no clear answer yet on when OMB will complete its review of EEOC’s proposal, whether it will be approved, or how quickly EEOC will act to repeal the guidance upon approval. Verified Credentials will monitor the situation and provide updates on the topic as they are made available.

This content is for informational purposes only and shall not constitute legal opinion or advice. Consult your legal counsel to ensure compliance.