Trump's EEOC voted to scrap background-check protections. Your rights still stand.

The Equal Employment Opportunity Commission voted 2-1 on Wednesday, Oct. 28, to rescind its 2012 guidance on how employers may use arrest and conviction records in hiring. The agency announced the move Thursday and made it effective immediately.

The two Republican commissioners outvoted Democrat Kalpana Kotagal in a closed session, Bloomberg Law reported. The guidance was the federal government's main roadmap for keeping background checks from shutting people out of work. The Sentencing Project estimates that between 70 million and 100 million Americans have some kind of criminal record, a figure based on Justice Department data from 2012 and 2013.

What the guidance did

The 2012 guidance applied a legal theory called disparate impact. In plain terms, a hiring rule that looks neutral can still be illegal if it screens out one race far more than others and the employer can't show the rule is needed for the job. The guidance cited national data showing Black Americans are arrested, and Black and Hispanic Americans incarcerated, at rates out of proportion to their share of the population. A blanket "no records" policy can screen them out that way.

The guidance told employers that "the fact of an arrest does not establish that criminal conduct has occurred." It urged them to weigh three factors drawn from a 1975 appeals case, Green v. Missouri Pacific Railroad: the nature and gravity of the offense, the time that has passed, and the nature of the job. It also encouraged an individualized assessment, which means telling the applicant they may be excluded and letting them explain before a final decision.

The stated reason

EEOC Chair Andrea Lucas said the rescission "reaffirms the agency's commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC's authority." She added that "Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination."

That's half-true. In 2019, the Fifth Circuit ruled in Texas v. EEOC that the EEOC lacked authority to issue the guidance as a binding rule and barred the agency from treating it "as binding in any respect." That ruling came in a suit brought by Texas and did not strike down disparate-impact law. Lucas's statement also leaves out half of Title VII. The statute itself bans hiring practices that cause a disparate impact unless the employer shows they are "job related for the position in question and consistent with business necessity." The Supreme Court recognized that rule in Griggs v. Duke Power in 1971, and Congress wrote it into the law in 1991.

The vote follows President Trump's April 2025 executive order, which told agencies to "deprioritize enforcement" of disparate-impact liability and claimed it is "wholly inconsistent with the Constitution." No court has held that. It is also the second time this month the EEOC has moved against disparate-impact protections. The agency is also moving to drop its guidelines on unfair hiring tests.

What hasn't changed

The guidance was advice, never a law. Rescinding it does not change Title VII, and private applicants can still sue over background-check policies that screen out workers of color without a job-related reason. Management-side firm Ogletree Deakins expects the EEOC to drop disparate-impact charges and issue right-to-sue letters instead, which leaves the fight to workers and their lawyers.

The Fair Credit Reporting Act still applies when an employer uses a background-check company. The employer must get your written permission first, and before rejecting you because of the report, it must give you "a copy of the report" and a written summary of your rights.

State and local fair-chance laws still apply too. California's Fair Chance Act bars employers with five or more employees from asking about convictions until after a conditional job offer. Before pulling the offer, they must weigh the same three factors the EEOC guidance used, tell you in writing, and give you at least five business days to respond.

We condemn this vote. It pulls the federal government back from protecting millions of workers who have already served their sentences.

If you have a record

• Ask for the report. If an employer pulls an offer after a background check, it owes you a copy before it acts.
• Fix mistakes. You can dispute errors directly with the background-check company, which generally must reinvestigate for free within 30 days.
• Check your state and city. Many have fair-chance laws with stronger rules than federal law.
• Watch the clock. You generally have 180 days to file an EEOC charge, or 300 days where a state or local agency enforces a similar law. Talk to an employment lawyer about your options.

Sources

• EEOC: EEOC Votes to Rescind Enforcement Guidance on Arrest and Conviction Records
• Bloomberg Law: EEOC Axes Obama-Era Guidance on Using Convict Records for Hiring
• EEOC: Enforcement Guidance on the Consideration of Arrest and Conviction Records (2012)
• U.S. Court of Appeals for the Fifth Circuit: Texas v. EEOC (2019)
• Justia: Green v. Missouri Pacific Railroad Co. (8th Cir. 1975)
• Justia: Griggs v. Duke Power Co. (1971)
• Cornell LII: 42 U.S.C. § 2000e-2 (Title VII)
• Cornell LII: 15 U.S.C. § 1681b (Fair Credit Reporting Act)
• Cornell LII: 15 U.S.C. § 1681i (Fair Credit Reporting Act disputes)
• California Government Code § 12952 (Fair Chance Act), via FindLaw
• Federal Register: Executive Order 14281, Restoring Equality of Opportunity and Meritocracy
• EEOC: How to File a Charge of Employment Discrimination
• The Sentencing Project: Americans with Criminal Records
• Ogletree Deakins: EEOC Rescinds Criminal Background Check Guidance
• Outten & Golden: The EEOC Pulled Its Guidance on Hiring People with Criminal Records. Workers Still Have Rights.
• The Employer Handbook: The EEOC Rescinds Its Criminal-Records Guidance. What Changes for Employers?