The Equal Employment Opportunity Commission has sent a final rule rescinding its 2012 enforcement guidance on arrest and conviction records to the White House for regulatory review. The guidance sets out how the agency reads employer screening policies under Title VII. Rescinding it changes the agency’s stated approach. The filing says nothing about Title VII itself, the Fair Credit Reporting Act or the screening workflows an employer has already built.
What was filed, and what it is
The federal regulatory dashboard at reginfo.gov lists the item as a pending review under Executive Order 12866. The agency is the EEOC, the stage is Final Rule, and the received date is 10/06/2026. The title reads Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. The listing carries the identifier RIN 3046-ZA04, shows no legal deadline, and marks the rule as not economically significant.
That is the whole public record at the moment. The listing does not publish the rule text, an effective date or a stated reason. A review at the Office of Information and Regulatory Affairs can end with the rule cleared, changed or sent back, so the guidance stays in force until a rule is actually published. HR teams should treat the filing as a signal about direction and keep their current policy intact until the Federal Register says otherwise.
What the 2012 guidance actually says
The document being rescinded is the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, EEOC Enforcement Guidance Number 915.002, issued on 04-25-2012 after a vote of the Commission under Chair Jacqueline A. Berrien. Most of what HR teams remember about it fits into four ideas.
First, a criminal record is not a protected class. The guidance says so directly: “Having a criminal record is not listed as a protected basis in Title VII.” The legal exposure comes from how a record is used. If a screening rule falls harder on applicants of one race or national origin and the employer cannot justify it, the rule can violate Title VII.
Second, arrests and convictions get different treatment. The Commission wrote: “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.” A conviction, in the guidance’s words, will usually serve as sufficient evidence that a person engaged in particular conduct. The guidance still lets an employer act on the conduct behind an arrest when that conduct makes the person unfit for the job.
Third, the guidance gives employers a test for blanket exclusions. A screen is easier to defend when it considers three factors drawn from the Eighth Circuit’s decision in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977): the nature and gravity of the offense or conduct, the time that has passed since the offense or the completed sentence, and the nature of the job held or sought.
Fourth, the guidance describes an individualized assessment for people the screen flags. That assessment consists of notice to the person that a conviction caused the screen-out, a chance to show why the exclusion should not apply to their circumstances, and a decision by the employer on whether the new information warrants an exception. The guidance also says that Title VII does not necessarily require individualized assessment in all circumstances, and that using one can help an employer avoid liability.
Section VIII of the document is a best-practices list that reads like a configuration checklist. It tells employers to eliminate policies that exclude people based on any criminal record, to write a narrowly tailored screening policy, to identify essential job requirements, to determine the specific offenses that show unfitness for each job, to set the duration of exclusions from the evidence, to record the justification, to limit questions to records that are job related, and to keep what they learn confidential.
Why the rescission fits a directive from 2025
The reasoning behind the filing sits in a different document. Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, was signed by President Donald J. Trump on April 23, 2025. Its policy section states: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
The order does more than state a policy. Section 4 tells all agencies to deprioritize enforcement of statutes and regulations to the extent they include disparate-impact liability, and it names 42 U.S.C. 2000e-2, the Title VII provision on unlawful employment practices. Section 5 asks the Attorney General to report on existing regulations and guidance that impose disparate-impact liability, with agency steps for amendment or repeal. Section 6 gives the Attorney General and the EEOC Chair 45 days to assess pending investigations, civil suits and positions that rely on a disparate-impact theory.
The 2012 guidance is built around disparate impact. Its three-factor test and its individualized assessment exist to help an employer show that a neutral-looking screen with unequal results is job related. An agency that has been told to deprioritize that theory has little use for guidance that explains how to defend against it. That is our reading of how the pieces connect. Neither the reginfo.gov listing nor the order says the filing is a response to the order.
What the rescission does not touch
Three layers of the screening stack sit outside the EEOC’s guidance, and none of them changes with a rescission.
The statute is the first. Title VII is law passed by Congress, and a rescinded guidance document does not amend it. The executive order directs agencies to deprioritize enforcement, and the order does not purport to amend 42 U.S.C. 2000e-2. The guidance describes itself as building on longstanding court decisions. We covered the same principle, that a screening tool answers to the same statutes as a human screener, in There Is No AI Exception in Employment Law.
The Fair Credit Reporting Act is the second, and it matters most for HR technology because it governs the vendor handoff. Under 15 U.S.C. 1681b(b)(3), an employer that uses a consumer report for employment purposes must, “before taking any adverse action based in whole or in part on the report,” give the person a copy of the report and a written description of their rights under the statute. Under 15 U.S.C. 1681c(a), a consumer reporting agency may not report records of arrest that are more than seven years old, or that are older than the governing statute of limitations if that period is longer, and it may not report other adverse items older than seven years, with records of convictions of crimes carved out of that second rule. Section 1681c(b) adds that these limits do not apply to a consumer credit report used in connection with the employment of any individual at an annual salary that equals or may reasonably be expected to equal $75,000 or more. The 2012 guidance describes the same seven-year arrest rule when it explains how third-party screening vendors operate.
State and local law is the third. The guidance notes that states and localities have their own laws restricting the employment of people with records of certain conduct, and that those laws are preempted by Title VII only where they purport to require or permit an act that would be an unlawful employment practice under it. The reginfo.gov listing concerns a federal guidance document and says nothing about state or local rules, so an employer that hires in several jurisdictions should expect each local rule to keep applying.
What changes inside an HR tech stack
Most of the practical work sits in configuration. Whoever set up an employer’s background-check integration decided how a returned record maps to an outcome such as clear, review or adverse action. That mapping is the employer’s policy, and the 2012 guidance is a likely reference for it. Rescinding the guidance does not require changing the mapping. It removes a document the employer could point to when explaining it.
That reference mattered because of the individualized-assessment step. A workflow that sends a flagged candidate a notice and a window to respond, then logs a human decision, produces the record the guidance described. It overlaps with the FCRA requirement to hand over the report and a rights summary before adverse action. Teams that built the two steps as one sequence can keep it. Teams that built them as separate tasks owned by different people should check that the notice, the response window and the decision are still logged together.
Timing is a recurring theme in our coverage. We reported that disability suits now begin at the offer stage, which makes the point in the process where a screen runs, before or after an offer, a decision worth writing down.
What to check before the rule publishes
The filing gives HR leaders a short window, and the checks are not complicated.
Start with the written policy. Find the document, confirm it names job-related criteria for each role family, and confirm that the look-back periods and offense categories were set from evidence rather than copied from a vendor default. The guidance asked employers to record the justification and the research behind the policy. If that file does not exist, assemble it now from whatever the team still remembers, and date it.
Next, read the vendor configuration. Ask the screening vendor which offense categories trigger a review flag, how long the report looks back, and whether arrests without convictions are returned at all. The FCRA seven-year rule applies to the vendor, but the employer decides what to do with whatever comes back.
Then walk one candidate through the adverse-action path. Time how long the notice takes to go out, check that the candidate sees the report copy and the rights summary, and check where the response is stored. Fix any step that depends on one person’s memory.
Finally, set a trigger. The rescission becomes real when the Federal Register carries the rule, and the text may say more than the title does. Someone should own reading it on the day it appears, and the policy review should be scheduled for that week.
The longer view for HR leaders
Enforcement guidance has a particular job: it tells regulated employers how an agency will read the law, which lets them design systems in advance. When the agency withdraws it, that prediction goes away and each employer is left to make its own judgment about legal risk. The statute still reaches the same conduct. A documented, job-related screening policy and a log showing it was followed are the records the 2012 guidance itself asked employers to keep.
The October 6 filing does not decide any of that. It is one step in a review process, and the final text is not public.
Source: Pending EO 12866 Regulatory Review, RIN 3046-ZA04 (reginfo.gov)
