EEOC moves to withdraw its 2012 guidance on arrest and conviction records

EEOC moves to withdraw its 2012 guidance on arrest and conviction records

8 October 2026: The US Equal Employment Opportunity Commission has sent a final rule to the White House that would rescind its 2012 enforcement guidance on how employers use arrest and conviction records in hiring. HR Dive reports the rule went to the Office of Management and Budget on Tuesday, and that neither the review timetable nor the date the guidance would actually disappear is known.

Not yet independently verified. We read only HR Dive's report; we have not seen the rule text or the White House review listing. HR Dive says EEOC did not respond to its request for comment, and no timetable for the rescission has been given. We will update this when it can be confirmed, and remove this note.

The 2012 document, "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII", set out three factors for employers: the nature and gravity of the offence, the time since the offence or the end of the sentence, and the nature of the job. It also said an arrest does not establish that criminal conduct occurred, and it warned that a blanket exclusion could produce a disparate impact because some groups are arrested and incarcerated at higher rates.

The move follows an executive order signed in April 2025 that told the attorney general and the EEOC chair to re-examine investigations, lawsuits and positions built on disparate-impact liability. The Department of Labor issued a final rule in July removing disparate-impact liability from its own antidiscrimination regulations, and HR Dive notes the Department of Justice has said the EEOC's earlier disparate-impact guidelines are unconstitutional.

Lawyers at Littler, quoted by HR Dive, cautioned against reading the change as a licence. Employers that apply a criminal background policy more harshly to one protected class than another will likely still violate Title VII, in their view, and the EEOC can still investigate. Disparate-impact claims are also written into Title VII, so private plaintiffs can keep bringing them whatever the agency does.

For teams that run screening through software, the Littler warning is the part to act on: a policy that hits one group harder stays a Title VII risk. Our background check software category lists seven products.

Related on TrustList:

• ACLU asks California to investigate Criteria's Emotify hiring test

Sources

• HR Dive: EEOC moves to rescind conviction and arrest record guidance from 2012, 8 October 2026