EEOC Rescinds Enforcement Guidance on Arrest and Conviction Records, But Employers Should Not Abandon Individualized Assessments of Applicants’ Criminal History
On October 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it voted the day prior to rescind, effective immediately, its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act.” That guidance had dated to 2012.
Title VII does not recognize “criminal record” as a protected trait (as it does with sex, race, color, religion, and national origin). Nonetheless, the EEOC’s now-rescinded guidance had cautioned employers that screening out applicants based on criminal history could disproportionately impact applicants based on race or national origin and thus recommended individualized assessment of the circumstances to determine if consideration of the record may be job-related and consistent with business necessity. The EEOC’s rescission of this guidance continues its trend of retreating from disparate-impact enforcement.
In announcing the rescission, EEOC Chair Andrea Lucas stated that the move “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.”
With that caveat in mind, employers would be wise to continue undertaking an individualized assessment of how and whether applicants’ criminal histories may be considered or may relate to the job for which they applied. And in some states or jurisdictions, such assessment may be mandatory.
For example, Wisconsin law generally prohibits discrimination in employment decisions based on arrest or conviction records, unless the arrest or conviction is substantially related to the employment at issue. To illustrate, the state’s civil rights agency provides the example that a “theft related conviction is substantially related to a cashier position” and “drunk driving offense is substantially related to a position as a truck driver” but “a drunk driving offense is probably not substantially related to a cashier position.” In essence, the agency considers that an “arrest or conviction is ‘substantially related’ to a job when there is some overlap between the circumstances of the job and the circumstances of the offense.
In sum, the EEOC’s recission of guidance recommending individualized assessments of applicants’ or employees’ criminal history should not prompt employers to actuallyabandon such best practices. Moreover, employers should ensure compliance with state or local laws regulating employers’ use of criminal record information.
