The U.S. Equal Employment Opportunity Commission (EEOC) has taken a significant step toward rescinding its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. On Oct. 6, 2026, the White House Office of Management and Budget received the EEOC’s draft final rule for review. If finalized and published, the rescission would mark a shift in the agency’s approach to criminal background screening and could signal changes in its enforcement priorities. The move follows a broader federal shift in the treatment of disparate impact theories. In June 2026, the EEOC also voted to rescind its affirmative action guidelines.
Although some employers may see the change as providing greater flexibility in hiring decisions, existing compliance obligations remain. Criminal history screening continues to present legal risks under federal, state and local law.
Background of the 2012 Guidance
The EEOC issued the Guidance in April 2012 amid concerns that blanket exclusions of applicants with criminal records could disproportionately affect applicants based on race or national origin. Citing national criminal justice statistics identifying disparities in arrest and conviction rates, the agency warned that a facially neutral screening policy could have a disparate impact on protected groups.
The Guidance did not prohibit employers from considering criminal history altogether. Rather, it cautioned against relying on arrests alone, because an arrest does not establish that criminal conduct occurred, and encouraged employers to ensure that such decisions were job-related and consistent with business necessity. Among other recommendations, the EEOC advised employers to eliminate blanket policies that automatically disqualify applicants with any criminal record; develop narrowly tailored written screening policies that identify the essential duties and risks of each position; weigh the nature and gravity of the offense, the time elapsed since the offense or completion of the sentence and the nature of the job, factors drawn from the Eighth Circuit’s decision in Green v. Missouri Pacific Railroad; conduct individualized assessments before excluding applicants whenever feasible; and limit criminal history inquiries to offenses genuinely relevant to the position at issue.
Many employers revised their hiring policies over the last decade to incorporate these principles, not only to address EEOC concerns but also to defend against potential discrimination claims.
The Guidance also faced legal challenge. In 2019, the U.S. Court of Appeals for the Fifth Circuit held in Texas v. EEOC that the EEOC lacked authority to issue the Guidance and barred the agency from treating it as binding against the state of Texas.
What Changes if the Guidance is Revoked?
The practical impact of rescinding the Guidance may be more limited than employers expect.
Rescission would withdraw the EEOC’s formal guidance and could signal a change in how the agency prioritizes criminal history cases involving disparate impact claims. Commentators expect the agency to continue pursuing disparate treatment claims while deprioritizing disparate impact charges. That shift does not mean the legal risk has disappeared.
Title VII itself is not changing. Disparate impact liability is written into the statute, which Congress codified in the Civil Rights Act of 1991, and an agency guidance document cannot remove it. Applicants and employees who exhaust the EEOC charge process can still bring disparate impact claims in court. Employers also may face EEOC charges and private lawsuits alleging intentional discrimination where criminal history information is used as a direct motive or pretext for disparate treatment. For example, an employer that overlooks criminal convictions of white applicants while rejecting minority applicants for comparable offenses could still face significant liability under Title VII.
Rescission could also affect arguments raised in private litigation. Employers and applicants may disagree about the significance of withdrawing the Guidance, but courts will continue to apply Title VII and controlling precedent.
A criminal history screening policy that is inconsistently applied or lacks a clear connection to legitimate business considerations may still create litigation risk.
Other Legal Risks Remain
The EEOC is not the only source of legal obligations in this area. Title VII, the court decisions interpreting it and state antidiscrimination laws, including Ohio Revised Code Chapter 4112, remain relevant regardless of the Guidance’s status.
State and local “ban-the-box” laws and fair chance hiring requirements also regulate when and how employers may consider criminal history. Depending on the jurisdiction, these laws may require individualized assessments, notices, waiting periods or an opportunity for applicants to respond before an adverse hiring decision. Employers operating in multiple jurisdictions should account for differences in these requirements.
Ohio Revised Code Section 9.73 bars public employers from asking about criminal history on employment application forms. Employers should also verify whether additional local fair chance hiring requirements apply in the jurisdictions where they recruit and hire.
In addition, employers conducting background checks through third-party consumer reporting agencies remain subject to the Fair Credit Reporting Act (FCRA), including its disclosure, authorization and adverse action requirements.
Negligent hiring considerations also continue to exist. Employers have legitimate reasons to consider criminal history when evaluating candidates for positions involving vulnerable populations, financial responsibility, security-sensitive duties, driving responsibilities or access to confidential information. The challenge is balancing those concerns with anti-discrimination obligations. In Ohio, an employer that hires someone holding a Certificate of Qualification for Employment under Ohio Revised Code 2953.25 is immune from negligent hiring claims if it knew of the certificate at the time of hire.
Practical Recommendations for Employers
Even if the Guidance is rescinded, employers should continue evaluating criminal history screening practices against applicable legal requirements and the demands of each position.
Employers should consider:
- Reviewing existing criminal background check policies to ensure they are tied to legitimate business risks and specific job functions.
- Documenting the rationale for excluding applicants based on particular offenses.
- Applying standards consistently across all applicants and employees.
- Training hiring managers on the appropriate use of criminal history information and consistent, nondiscriminatory decision-making.
- Monitoring state and local law developments, many of which remain more restrictive than federal requirements.
- Conducting individualized assessments in close cases, particularly where an offense is remote in time or only tangentially related to job duties.
Conclusion
The EEOC’s pending rescission reflects a shift in federal enforcement priorities, but it does not eliminate employers’ legal obligations. Title VII continues to prohibit intentional discrimination and certain employment practices that result in an unjustified disparate impact. State and local fair chance hiring requirements may impose additional obligations.
For employers, the key takeaway is straightforward: criminal history screening decisions should be consistent, job-related and supported by legitimate business considerations. Clear policies, thoughtful assessments and sound documentation can help reduce the risk of agency investigations and private litigation, regardless of whether the 2012 Guidance remains in effect.
KJK’s Labor & Employment practice group helps employers review and update background check policies, navigate federal, state and local compliance requirements, train hiring managers and respond to employment discrimination claims. Contact Maribeth Meluch (MM@kjk.com; 614.427.5747) or another member of our Labor & Employment team to discuss what these developments mean for your hiring practices.