The U.S. Equal Employment Opportunity Commission (EEOC) voted 2–1 on October 28, 2026, to rescind its 2012 enforcement guidance on employers’ use of arrest and conviction records. The rescission took effect immediately.
This is a change in EEOC guidance, not the underlying law. In announcing the rescission, the Commission said the change was intended to align its Title VII enforcement with the Constitution and the limits Congress placed on the agency’s authority. The EEOC emphasized that the action does not require employers to abandon lawful screening practices and does not permit unlawful discrimination. Title VII remains in effect, including its standards governing intentional discrimination and disparate-impact claims.
Specifically, California’s Fair Chance Act remains unchanged. Subject to limited exceptions, covered employers generally must wait until after making a conditional offer before asking about or considering conviction history. Before withdrawing an offer based on conviction history, employers must complete an individualized assessment and follow the required notice and response process.
Multi-state employers should continue checking applicable state and local fair-chance or ban-the-box requirements rather than assuming the EEOC’s action changes those obligations.
What Does It Mean?
Employers should not make immediate changes to their background-check practices solely because the EEOC withdrew its guidance. Instead, employers should:
- Continue following California and other applicable state and local requirements.
- Review criminal-history screening criteria for consistency and job-relatedness.
- Confirm that recruiters and background-check vendors follow the employer’s procedures.
It is important to keep in mind that the federal enforcement framework has changed, but employers’ legal obligations have not altered or disappeared.