On October 6, 2026, the U.S. Equal Employment Opportunity Commission submitted a draft final rule to the Office of Management and Budget's Office of Information and Regulatory Affairs that would rescind the commission's 2012 enforcement guidance on the use of arrest and conviction records in employment decisions. If OIRA signs off and the rule is published, the agency will have walked away from one of the federal government's longest-standing tools for challenging blanket criminal-history exclusions in hiring. For people with records, the practical impact is more complicated than headlines suggest. Some federal protection is being cut, several important protections are not, and a patchwork of state and local laws is now even more important to understand.
What the 2012 guidance actually did
The 2012 guidance, formally titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964," was the EEOC's playbook for two specific Title VII theories: disparate treatment (treating an applicant of one protected class worse than another in a way that is intentional) and disparate impact (a facially neutral policy that falls harder on a protected group, in this case because of the documented racial disparities in the U.S. criminal legal system). The disparate-impact track was the more important one for people with records. The guidance explained how a charging party could show that an employer's blanket exclusion had a disparate impact on Black and Hispanic applicants and how the employer could defend by showing that a particular screening was "job related and consistent with business necessity." It also set out two routes for that defense: the targeted screen method, which considered the nature and gravity of the offense, the time elapsed, and the nature of the job held or sought, and the individualized assessment method, which added nine factors to weigh after giving the applicant a chance to respond.
What rescinding the guidance would change
If the rule is finalized, the EEOC will no longer pursue disparate-impact charges against employers who use criminal background checks, and the agency will instead issue right-to-sue letters that let individual charging parties take the case to federal court on their own. Employers will still have to defend against disparate-treatment claims, which address intentional discrimination rather than the statistical effect of a neutral policy. The underlying Title VII statute, which is the federal law that prohibits employment discrimination based on race, color, religion, sex, or national origin, does not change. Disparate-impact case law, which the federal courts have built up since the 1970s, also does not change. What changes is the federal enforcement appetite for challenging blanket exclusions and the practical pressure the EEOC had put on employers to adopt the targeted-screen framework.
What does not change
The Fair Credit Reporting Act continues to govern every employer that uses a third-party background-check vendor. Specifically, the FCRA requires a stand-alone disclosure before the background check is run and written certification that the employer followed the FCRA's adverse-action process before deciding not to hire, promote, or retain someone based on the report. State and local fair-chance laws, sometimes called ban-the-box laws, also remain in force. Many of those laws require employers to wait until after a conditional offer before asking about criminal history, require an individualized assessment before an adverse action, and in some jurisdictions limit which offenses can be considered for which jobs. States and cities with their own fair-chance enforcement agencies have signaled that they will continue to pursue cases in the gap left by the EEOC, and the recent OFCCP federal-contractor disability self-ID rollback does not affect any of these statutes.
What people with records can do right now
The first step is to know the law in the state and city where the job is located. A charge filed with a state fair-employment agency or a complaint with a city or county human-rights commission often has a faster path than a federal EEOC charge, and the remedies can be similar. The second step is to keep documentary proof of every part of the post-conviction story that might fit an individualized assessment: certificate of disposition showing the actual charge and disposition, evidence of rehabilitation, employment history since the conviction, training or education completed, character references, and any record-sealing, expungement, or pardon paperwork that applies. The third step is to respond in writing to an employer's individualized-assessment request with that documentation attached, because an unanswered request is the most common way an employer-side review produces an adverse action with no record of the response. The fourth step is to preserve the FCRA-required stand-alone disclosure and adverse-action notice if those documents go missing from the application file, because the FCRA's 30-day cure window for some claims requires the notice to exist before the deadline runs.
What to watch between now and the end of the year
The next signal is whether OIRA clears the draft for publication in the Federal Register, which would put the rule on a public-comment timeline measured in weeks rather than months. The next signal after that is whether private plaintiffs file new Title VII disparate-impact cases that test how the rescission affects pre-existing case law; the EEOC's withdrawal from the enforcement role does not change the legal standard, but it does change how much weight a court will give to the agency's prior interpretation. State legislatures in California, New York, Illinois, and several other states with robust fair-chance laws are expected to use the federal pullback to argue for stronger local enforcement, and several pending state bills in the back half of 2026 would expand coverage of background-check use beyond the FCRA. Anyone whose record stands in the way of a job that they are otherwise qualified for should treat the rest of 2026 as the moment to lock down the record-sealing or expungement options available in their jurisdiction, because the federal floor under which those state options sit is being re-set and the new floor is lower than the one that has been in place for fourteen years.