Analysis:

On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC)   voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act. The decision removed a longstanding federal agency framework that employers have used when evaluating applicants and employees with criminal histories.

While the rescission represents a significant shift in enforcement policy, it does not eliminate employers’ obligations under Title VII or provide unrestricted authority to exclude individuals based on criminal records. Employers must still consider the risks of unlawful discrimination, applicable background-check requirements, and the consequences of revising established hiring procedures. This article examines the implications of the EEOC’s decision and offers practical guidance for employers, including school districts and other public-sector organizations.

Understanding the Rescinded Guidance

The EEOC issued its 2012 guidance to explain how consideration of arrest and conviction records could implicate Title VII’s prohibitions on discrimination, particularly based on race and national origin. It examined two principal theories: disparate treatment, involving intentional differential treatment because of a protected characteristic, and disparate impact, involving a facially neutral policy that disproportionately excludes members of a protected group without sufficient legal justification.

The guidance encouraged employers to evaluate the relationship between criminal conduct and a particular job, rather than relying automatically on broad exclusions. It identified three considerations: the nature and gravity of the offense, the time elapsed since the offense or completion of the sentence, and the nature of the position. It also recommended individualized assessments in appropriate circumstances, allowing applicants to provide additional information before a final decision.

Although not itself a binding authority, the guidance shaped screening policies and compliance procedures across industries. Its withdrawal removes that particular agency interpretation; it does not necessarily erase the underlying legal considerations.

Rescission Does Not Eliminate Title VII Liability

One of the most important questions is whether employers now have greater flexibility to disqualify applicants based on criminal histories. Title VII continues to prohibit intentional discrimination based on race, national origin, and other protected characteristics, so an employer cannot overlook a comparable conviction for one applicant while disqualifying another because of a protected characteristic.

The rescission also does not repeal the disparate impact provisions of Title VII. While federal enforcement positions on those provisions have shifted away under the Trump administration,  courts continue to address challenges to facially neutral employment practices. Withdrawal of the guidance is not an amendment to Title VII or a ruling on how courts will apply the law.

Employers, therefore, should not interpret the announcement as blanket permission to adopt criminal-history exclusions without reviewing their particular legal risks.

Other Background-Check Requirements Still Apply

The EEOC’s decision does not supersede other federal, state, or local requirements. The Fair Credit Reporting Act, for example, continues to impose disclosure, authorization, and adverse-action procedures when covered background reports are obtained through third-party consumer reporting agencies. State and local laws may also limit the timing of criminal-history inquiries, the records that may be considered, and the procedures required before an adverse employment decision.

Employers operating across several jurisdictions face additional complexity. A single national screening policy may not account for differences among applicable requirements. Before changing procedures, employers should identify the rules governing each position and location.

Special Considerations for School Districts and Other Public Employers

Public employers, like school districts and municipalities, face additional responsibilities because of the nature of their operations. In Florida, education laws impose personnel-screening, fingerprinting, disqualifying-offense, and employment-eligibility requirements for specified positions. These student-safety protections remain in effect regardless of the EEOC’s change in guidance.

Administrators and human resources personnel should distinguish between criminal-history exclusions mandated by law and discretionary decisions involving offenses that do not automatically disqualify an applicant. Public employers should also consider applicable constitutional protections, employment procedures, and collective bargaining obligations where relevant.

Any revisions should involve coordination among human resources personnel, administrators, and legal counsel to ensure consistency with statutory mandates and established procedures.

Practical Considerations for Employers

The EEOC’s announcement on its recission presents an opportunity to review existing policies. Employers should consider these steps now:

• Review Current Screening Policies. Identify procedures developed in response to the 2012 guidance and assess whether they still advance legitimate safety, operational, and compliance objectives.
• Separate Mandatory and Discretionary Exclusions. Identify criminal offenses that trigger statutory disqualification and those that permit individualized employment judgment.
• Assess Job-Related Risks. Consider the duties of the position, the conduct at issue, and legitimate workplace concerns before adopting or removing exclusion criteria.
• Apply Standards Consistently. Train hiring personnel to use established standards uniformly and to avoid decisions influenced by protected characteristics.
• Document Decisions. Maintain appropriate records explaining legitimate reasons for screening determinations and any changes to policies.
• Check Other Applicable Laws. Review federal, state, local, and industry-specific requirements, including FCRA procedures for covered consumer reports.
• Coordinate With Counsel. Obtain legal review before substantial changes to background-screening practices, particularly for regulated and public-sector positions.

Balancing Flexibility With Continued Obligations

The rescission signals a meaningful change in federal enforcement policy and may give employers additional flexibility in designing screening procedures. Greater flexibility, however, should not be confused with an absence of legal risk. Employers must still balance legitimate workplace-safety concerns, employee qualifications, and regulatory requirements against their duty to make lawful, nondiscriminatory employment decisions.

For school districts and other public-sector employers, the balance is further shaped by screening statutes and responsibilities to the communities they serve. Rather than discarding established procedures, employers should evaluate whether their policies remain legally defensible, operationally appropriate, and consistently administered. Careful documentation, review, and coordination with counsel remain essential.

Derek M. Dzwonkowski is an attorney in RumbergerKirk’s Tallahassee office whose practice focuses on labor and employment law, education law and casualty litigation. He advises public and private employers on human resources issues, policy development, employment agreements and regulatory compliance. Derek also represents clients in state and federal litigation involving discrimination, retaliation, harassment and other employment-related claims, as well as union grievances and unfair labor practice proceedings.