EEOC Preparing to Repeal Guidance on Use of Arrest and Criminal Records

On October 6, 2026, the Office of Management and Budget (OMB) – the White House office that oversees and approves agency regulations – indicated that it has received a draft final rule from the Equal Employment Opportunity Commission (EEOC) entitled, “Rescission of Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act.” Insofar as it is styled as a final rule, if and when OMB approves it, EEOC is expected to publish the rule and quickly repeal this guidance effective upon publication, although a timeline is not year clear.

By way of background, in 2012, the agency issued guidance outlining how arrest and conviction records implicate Title VII in two contexts: intentional discrimination or so-called “disparate treatment” cases, and “disparate impact” cases, which are cases arising when a policy that is neutral on its face has a disproportionate impact on a protected class. Littler’s detailed analysis of the guidance when it was issued may be found here.¹

A “disparate treatment” claim would arise, for example, where an employer disqualifies applicants of one race for an arrest or conviction for possession of marijuana but does not disqualify applicants of other races with the same conviction. That such a policy would violate Title VII is a common-sense and non-controversial conclusion. 

A “disparate impact” claim, on the other hand, would arise where the employer adopts a neutral policy of not hiring any applicant with an arrest or conviction for possession of marijuana, but in practice that policy disproportionately screens out applicants of one protected class but not another. That on its face does not establish that the policy is unlawful—an employer may still demonstrate that its policy is job-related for the positions in question and consistent with business necessity. But even then, a Title VII plaintiff may prevail by demonstrating that there is a less discriminatory "alternative employment practice" that serves the employer's legitimate goals as effectively as the challenged practice. 

The guidance also discussed how, in the EEOC’s view, an employer may establish “business necessity”—most commonly employing a "targeted screen" that considers the three Green factors (derived from Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1975), which have been the centerpiece of the EEOC's guidance for the past 25 years): (1) the nature and gravity of the offense; (2) the time that has passed since the offense and/or completion of the sentence; and (3) the nature of the job held or sought.

Takeaways

Although the EEOC’s guidance may soon be repealed, employers should not think that they may now use arrest or conviction records however they wish without fear of liability. 

First, and critically, an employer that applies a criminal background policy more harshly against one protected class than another (“disparate treatment” as discussed above) will still likely violate Title VII, and nothing suggests EEOC will not continue to investigate and pursue those charges. 

Second, while EEOC leadership reportedly directed staff last year to not investigate or pursue any cases based on disparate impact theory (and acknowledged as much in its recent National Enforcement Plan) the theory is still recognized by the U.S. Supreme Court and was codified by Congress in Title VII. As such, disparate impact claims may still be brought under federal law—that the EEOC has stated it will not bring such cases does not mean that the plaintiff’s bar is limited in doing so or will follow suit.

Finally, disparate impact liability remains available under many state non-discrimination laws, meaning employers continue to face liability under state law as well as federal.

It is not clear how quickly OMB will complete its review of EEOC’s proposal, and, if approved, how quickly EEOC will act to repeal the arrest and conviction guidance. Littler’s Workplace Policy Institute will keep readers apprised of developments.