EEOC Moves to Rescind Arrest and Conviction Records Guidance: What Employers Need to Know

The Executive Order on Disparate Impact

On April 23, 2025, President Trump signed Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy.” The order declares a policy of eliminating disparate impact liability “in all contexts to the maximum degree possible,” and directs all federal agencies to deprioritize enforcement of statutes and regulations to the extent they include disparate impact liability, expressly naming Title VII’s disparate impact provision, 42 U.S.C. § 2000e-2. The order itself creates no enforceable rights and does not, and cannot, amend Title VII or overrule case law.

The EEOC has followed through. Following the order, agency leadership reportedly directed staff to close nearly all pending charges based solely on disparate impact by September 30, 2025, and the agency acknowledged that shift in its recent National Enforcement Plan. On June 9, 2026, DOJ issued a formal opinion concluding that the EEOC’s existing interpretations of Title VII disparate impact liability, including the Uniform Guidelines on Employee Selection Procedures, are unconstitutional, and stating that selection tools such as background checks should be treated as presumptively job related. The EEOC also voted on June 30, 2026, to rescind its longstanding affirmative action guidelines.

How This Rescission Fits In

The criminal records guidance is, at its core, a disparate impact document. Its most consequential positions, that national statistics support a finding of adverse impact and that blanket exclusions are difficult to defend without a targeted, individualized approach, rest on exactly the theory Executive Order 14281 directs agencies to abandon. Rescinding it removes the EEOC’s roadmap for investigating neutral criminal record screens and signals that the agency will not pursue such charges. Employers should expect the EEOC to continue to investigate disparate treatment claims, such as uneven application of a background check policy across racial or national origin groups.

What Courts Are Likely to Do

Withdrawing agency guidance does not change the law that courts apply. Employers should keep the following in mind:

Disparate impact remains part of Title VII. The theory was recognized by the U.S. Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and codified by Congress in the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(k). The EEOC’s decision not to bring these cases does not prevent applicants and employees from filing them; after exhausting the charge process, individual plaintiffs and class counsel can still sue.

The Green factors are case law, not just agency policy. Courts have applied the Eighth Circuit’s framework for decades, independent of the guidance, and the Third Circuit in El v. SEPTA, 479 F.3d 232 (3d Cir. 2007), required employers to show that a criminal record policy accurately distinguishes between applicants who do and do not pose an unacceptable level of risk. We expect courts to continue to weigh offense severity, recency, and job relevance when evaluating criminal record screens.

Defenses may get stronger, but they are not dispositive. Employers can be expected to invoke the DOJ opinion’s lenient view of business necessity, and some courts, particularly those skeptical of disparate impact theory, may find those arguments persuasive. However, the DOJ opinion does not have the force of law, and courts are bound by Griggs and the statute’s text until the Supreme Court or Congress says otherwise. Constitutional challenges to disparate impact liability are likely, but their outcome is uncertain.

Arrest-only exclusions remain especially vulnerable. Because an arrest is not proof of misconduct, courts are likely to remain skeptical of policies that exclude candidates based on arrests alone, independent of the guidance.

State and local law fills the gap. Many state anti-discrimination statutes recognize disparate impact liability, and numerous states and localities have “ban-the-box” and fair chance laws that restrict when and how criminal history may be considered, often requiring individualized assessments similar to those in the guidance. The federal Fair Credit Reporting Act’s notice and adverse action requirements are also unaffected.

What Employers Should Do Now

• Do not abandon targeted screening. Continue to tie criminal history exclusions to the nature of the offense, its recency, and the duties of the position.
• Avoid blanket exclusions and arrest-only disqualifications, which remain the most litigation-prone practices.
• Apply background check policies consistently and document decisions to defend against disparate treatment claims, which the EEOC will continue to pursue.
• Review compliance with state and local fair chance laws and FCRA procedures, which are unaffected by the rescission.
• Monitor the publication of the final rule and further developments in litigation challenging disparate impact liability.

For questions about your background check policies or how these developments may affect your organization, please contact your Quarles & Brady attorney or;

• Edward Hollis: (317) 399-2834 / edward.hollis@quarles.com

Please also visit our Federal Policy Watch: Monitoring White House Developments page for more insight about navigating changes at the federal level.