The EEOC Is Dropping Its Criminal Records Guidance. Fifteen States Still Enforce Their Own

For fourteen years, the EEOC's guidance on criminal records has been the document HR teams reached for when a background check came back with something on it. It told employers to weigh the offense, the time that had passed, and the job in question, instead of rejecting everyone with a record. That guidance is about to disappear. The legal exposure it described is not going anywhere, and in most of the country it is written into state and local law that the EEOC does not control.

What the EEOC Is Actually Rescinding

According to Littler's analysis, the Office of Management and Budget indicated on October 6, 2026 that it had received a draft final rule titled "Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act." If OMB approves it, the EEOC is expected to publish the rule and repeal the guidance effective immediately. No timeline has been set.

The 2012 guidance rested on three factors drawn from a 1975 Eighth Circuit case, Green v. Missouri Pacific Railroad: the nature and gravity of the offense, the time elapsed since the offense or completion of the sentence, and the nature of the job held or sought. As HR Dive reported, the guidance also stressed that an arrest does not establish that criminal conduct occurred, and it urged employers to look at the number of offenses, employment history before and after, and evidence of rehabilitation. Its core concern was disparate impact: a blanket exclusion that looks neutral can disproportionately screen out groups that are arrested and incarcerated at higher rates.

The rescission fits a pattern. An April 2025 executive order condemned disparate-impact liability. Littler notes that EEOC leadership reportedly directed staff in September 2025 not to pursue disparate impact cases, and the agency's National Enforcement Plan acknowledged that approach on June 5, 2026. In July 2026, the Department of Labor issued a final rule removing disparate-impact liability from its own antidiscrimination regulations.

Why the Liability Does Not Leave With the Guidance

Guidance is not law. Disparate impact is part of Title VII itself, codified by Congress and still recognized by the Supreme Court. Littler's Jim Paretti and Barry Hartstein warn that employers should not assume they can use arrest or conviction records "however they wish without fear of liability." The EEOC declining to bring disparate impact cases does not stop private plaintiffs from bringing them. And a policy applied more harshly to one protected group than another is disparate treatment, which the agency is still expected to pursue.

The bigger exposure for most employers sits at the state and local level. The National Employment Law Project's fair chance tracker counts 15 states that require private employers to remove conviction history questions from job applications: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Another 22 localities extend fair chance rules to private employers, among them New York City, Chicago, Los Angeles, Philadelphia, San Francisco, Seattle and Austin. In total, 37 states and more than 150 cities and counties have adopted some form of fair chance policy, covering more than 267 million people, or over four-fifths of the U.S. population.

Several of those laws go further than the federal guidance ever did, because they are binding. A 2026 compliance review from Mitratech notes that California's Fair Chance Act applies to employers with five or more employees and requires a sequence: a conditional offer first, then an individualized assessment, then a notice identifying the conviction history with a copy of the report, then time for the candidate to respond before a final decision. New York City requires a structured analysis and a written Fair Chance Notice before an employer finalizes a denial. Illinois bars employers with 15 or more employees from considering criminal history until an applicant is told they have an interview or, if there is no interview, until a conditional offer.

In other words, the factors the EEOC is withdrawing, offense, time and job, remain the backbone of the individualized assessment that state and city laws require. An employer that drops them because the federal document is gone can find itself out of compliance in its largest markets.

The Business Case Has Not Changed Either

There is also a hiring argument for keeping a disciplined process. In a Checkr survey of 2,000 American business leaders, 77% said their company was willing or neutral about hiring people with criminal records, yet only 24% said their organization had actually hired someone with a record in the previous 12 months. Among leaders who had, 59% said those employees performed as well as or better than others, and 56% expected retention to be the same as for employees without records.

The same survey shows why screening still matters to leaders: 73% agreed the type of offense would affect their hiring decision, and 17% named legal liability as a top concern. That is exactly what a targeted screen addresses. It lets an employer exclude records that are genuinely relevant to the job while keeping access to a large pool of qualified candidates that blanket exclusions throw away.

A Criminal Records Screening Playbook

• Keep the individualized assessment. Continue weighing the offense, the time elapsed, and the duties of the job, since state and city fair chance laws require that analysis whether or not the EEOC still recommends it.
• Map your locations against fair chance laws. List every state and city where you hire, including remote workers, and note when each lets you ask about criminal history and what notice it requires before a denial.
• Set the strictest standard as your default. For multi-state employers, building one process around requirements like California's conditional offer, notice and response window is simpler than running a different sequence in every jurisdiction.
• Document every adverse decision. Record which factors you considered, what the candidate said in response, and why the record was job-related, because that file is your defense against a private disparate impact or treatment claim.
• Audit outcomes for consistency. Check whether the same record leads to the same decision across candidates of different races and backgrounds, since uneven application is disparate treatment the EEOC is still expected to pursue.
• Train hiring managers on arrests. Make sure the people making offers know an arrest alone is not proof of conduct, and that state laws often restrict using arrests that did not lead to conviction.

The rescission will change what the EEOC chooses to enforce, not what employers can safely do. The rules that govern most hiring decisions now live in state capitals and city halls, and private plaintiffs do not need the agency's permission to sue. HR teams that keep a documented, job-related screening process will lose nothing when the guidance disappears. Those that treat its removal as a green light may discover how much of it was still law.