The U.S. Equal Employment Opportunity Commission has rescinded its 2012 enforcement guidance governing how employers consider arrest and conviction records in hiring and other employment decisions. The action, approved October 28, 2026, and announced the following day, takes effect immediately and represents a significant change in federal enforcement policy concerning criminal background checks.

The 2012 guidance addressed concerns that criminal-history screening policies could disproportionately exclude applicants based on race or national origin, potentially violating Title VII of the Civil Rights Act. It encouraged employers to evaluate convictions using three factors established in Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975): the nature and seriousness of the offense, the time elapsed since the offense, and the nature of the position being sought. The guidance also encouraged individualized assessments before excluding applicants based on criminal records, although such assessments were not universally required.

The EEOC’s decision withdraws those recommendations as agency enforcement guidance. It does not overturn the Green decision, repeal Title VII, or invalidate existing judicial precedent. Nor does it require employers to abandon lawful background-check procedures adopted in response to the 2012 guidance.

For fire departments, the change means greater flexibility under EEOC enforcement policy when considering applicants with criminal histories. Departments may evaluate convictions involving arson, violence, theft, or other offenses in relation to the responsibilities of firefighters and emergency medical personnel, including access to peoples’ homes, vulnerable patients, controlled substances, and sensitive information. However, the rescission does not establish that blanket exclusions based on criminal convictions are lawful in every circumstance.

Two important forms of discrimination remain prohibited under Title VII. Disparate treatment occurs when an employer intentionally treats applicants differently because of race, national origin, or another protected characteristic. Disparate impact involves facially neutral employment policies that disproportionately exclude members of a protected class and cannot be justified as job-related and consistent with business necessity. The rescission does not eliminate either theory of liability with regard to the use of criminal background checks, although it signals a change in how the EEOC intends to approach criminal-history screening.

In announcing the decision, EEOC Chair Andrea Lucas emphasized that the agency would continue enforcing federal discrimination laws:

Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.

The rescission also leaves other laws governing background investigations unchanged. State criminal-history restrictions and fair-chance hiring laws remain applicable. In addition, when a fire department obtains a criminal background report from a third-party consumer reporting agency, the federal Fair Credit Reporting Act generally requires advance disclosure and written authorization, as well as specified notices when adverse employment action is based on the report. Those requirements generally do not apply when a department conducts its own criminal-history investigation directly through court records or law enforcement databases without using a consumer reporting agency.

The EEOC’s action reflects a broader shift in federal employment discrimination enforcement, including a June 2026 Department of Justice Office of Legal Counsel opinion adopting a narrower interpretation of disparate-impact liability. That opinion expresses the executive branch’s legal position but does not itself change the statutory language of Title VII or overturn controlling judicial decisions.

The practical significance for fire departments is that the EEOC has withdrawn a longstanding enforcement framework that influenced criminal-history screening for more than a decade. While the agency’s approach has changed, the underlying federal prohibition against discriminatory employment practices remains in effect.

Here is a link to the EEOC announcement.