What You Need to Know About the Equal Employment Opportunity Commission (EEOC)

Updated November 3, 2026

Update, November 3, 2026. In a press release dated October 29, 2026, the EEOC announced that it voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. The rescission is effective immediately. Title VII, state and local fair chance laws, and the Fair Credit Reporting Act (FCRA) still apply. See What changed and what did not below.

The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, the federal law that bars employment discrimination based on race, color, religion, sex and national origin. That law applies to how employers use background checks, including criminal records.

From 2012 until October 2026, the EEOC also published enforcement guidance on how it applied Title VII to arrest and conviction records. The EEOC has now rescinded that guidance. This page explains what the guidance said, what changed, and what employers still need to account for.

What changed and what did not

What changed (October 29, 2026)

• In a press release dated October 29, 2026, the EEOC announced that it voted to rescind its 2012 guidance on arrest and conviction records. The rescission is effective immediately.

• The EEOC said the rescission does not restore the policy statements the 2012 guidance replaced.

• The EEOC also said the rescission does not require employers to abandon any lawful practices they adopted in response to the guidance.

What did not change

• Title VII still applies. In the same release, EEOC Chair Andrea Lucas said that Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.

• Private lawsuits are still possible. An attorney quoted by SHRM noted that while the EEOC may not bring these cases, plaintiffs' lawyers can.

• State and local fair chance laws still apply. Many states, counties and cities have their own rules on when and how employers can consider criminal history. See our ban the box overview, the NYC Fair Chance Act update and our Washington background check page.

• The FCRA still applies. The rescission does not change your obligations under the Fair Credit Reporting Act when you use a consumer reporting agency for background checks. See what adverse action means in employment screening.

What this means for your screening program

The EEOC said the rescission does not "require employers to abandon any lawful practices they may have adopted in response to it." Title VII, including disparate impact claims, and state and local fair chance laws still apply. A written screening policy, job-related criteria and documented decisions can help you meet those requirements. Ask your counsel before you change or remove any step, especially if you hire in more than one state or city.

Staffing agencies that place workers across several jurisdictions should check each location's fair chance rules, since those rules did not change. See our staffing and recruiting agencies page.

The EEOC: A brief history of background checks and employment discrimination

Title VII of the Civil Rights Act of 1964 created the EEOC, which opened on July 2, 1965. Its role in how employers use background checks came later, as more employers began screening candidates.

Title VII does not ban background checks. As the 2012 guidance put it, "Having a criminal record is not listed as a protected basis in Title VII." Its focus has been on how employers use criminal records, and whether a policy treats people differently or screens out protected groups at higher rates.

Title VII recognizes two kinds of claims that can apply to criminal record screening. Disparate treatment means treating applicants differently because of a protected characteristic, such as disqualifying applicants of one race for a conviction while letting applicants of another race with the same conviction move forward. Disparate impact means a neutral-looking policy that screens out a protected group at a higher rate. A blanket policy that excludes everyone with any criminal record is the common example.

As screening spread from senior hires to entry-level and hourly jobs, more employers had to think about these rules when writing their screening policies.

What the 2012 guidance said

This section describes guidance the EEOC rescinded, effective immediately, as announced in its press release dated October 29, 2026. It is here for background. It is not current EEOC guidance.

The 2012 guidance focused on criminal records. It explained how the EEOC applied Title VII disparate treatment and disparate impact to arrest and conviction records.

Adverse impact

The guidance discussed how a criminal record policy could have an adverse impact on protected groups, and it said an employer facing that kind of claim would need to show its policy was job related and consistent with business necessity.

The guidance did not take away an employer's ability to screen. Employers run criminal background checks because some records are relevant to the job, such as a history of theft for a role that handles cash.

Three factors

The guidance listed three factors, often called the Green factors, as relevant to whether a criminal record exclusion was job related for the position and consistent with business necessity:

1. The nature and gravity of the offense or conduct.

2. The time that has passed since the offense or conduct and/or completion of the sentence.

3. The nature of the job held or sought.

For example (our illustration, not from the guidance), a recent drunk driving conviction is relevant to a delivery driver job in a way it may not be for a desk job.

Case by case consideration

The guidance described individualized assessment, which meant giving people excluded by a screen a chance to show why the exclusion should not apply to them. It said Title VII "does not necessarily require individualized assessment in all circumstances" but that it "can help employers avoid Title VII liability." Some state and local fair chance laws now require their own version of this kind of review, so check the rules where you hire.

Building a criminal background check policy after the rescission

The EEOC's rescission did not change the laws listed above. A defensible policy still starts with the job.

1. Tie each check to the role. Decide which searches each position needs, and why, before you order.

2. Write the policy down. Use plain language. Record which offenses matter for which jobs and why.

3. Avoid blanket bans. A rule that excludes everyone with any record is the kind of policy most often cited in disparate impact claims.

4. Follow state and local rules. Check fair chance and ban the box laws in every location where you hire or place workers.

5. Follow the FCRA. Give the standalone disclosure and get written authorization before you order a report. Before you take adverse action based on it, send a copy of the report and the summary of rights, and then send an adverse action notice. See what adverse action means in employment screening.

6. Document each decision. Records of how you applied your policy help if a decision is ever challenged.

7. Talk to counsel. This page is general information, not legal advice.

Need help setting up your screening packages? Contact our team. Read a TechRadar review of BackgroundChecks.com (April 2026). Prices and packages in third-party reviews may be out of date; current prices and any court fees are shown at checkout.