On October 29, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it had rescinded its 2012 enforcement guidance addressing employers’ consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”). The rescission took effect immediately.
Although the announcement represents a change in federal enforcement guidance, it does not alter employers' underlying obligations under Title VII or applicable state and local laws. For California employers, the state's Fair Chance Act and related background check requirements remain in effect.
What Changed?
The EEOC's 2012 guidance addressed how employers' use of criminal history information could implicate Title VII's prohibitions against discrimination. Among other things, the guidance addressed the potential discriminatory impact of criminal history screening policies and recommended that employers consider the nature and gravity of an offense, the time elapsed since the offense or completion of the sentence, and the nature of the position when evaluating criminal records.
While the EEOC has withdrawn this guidance, Title VII continues to prohibit intentional discrimination based on race or national origin. Employers may also continue to face disparate-impact challenges to facially neutral criminal history screening policies under Title VII.
Importantly, the EEOC clarified that the rescission does not require employers to abandon lawful screening practices adopted in response to the 2012 guidance.
California's Fair Chance Act Remains in Effect
Regardless of the EEOC's announcement, California employers must continue complying with the California Fair Chance Act (Government Code section 12952) and its implementing regulations (California Code of Regulations, title 2, section 11017.1).
The Fair Chance Act generally applies to employers with five or more employees and places specific restrictions on the consideration of criminal history in hiring decisions. Subject to applicable exceptions, covered employers must continue to:
- Delay criminal history inquiries. Employers generally may not inquire into or consider an applicant's criminal history until after making a conditional offer of employment.
- Avoid considering prohibited criminal history information. Employers generally may not consider certain records, including arrests not resulting in convictions, participation in pretrial or post-trial diversion programs, and convictions that have been sealed, dismissed, expunged, or otherwise legally eradicated.
- Conduct an individualized assessment. Before denying employment based in whole or in part on conviction history, employers must assess whether the conviction history has a direct and adverse relationship with the specific duties of the position. This assessment must consider the nature and gravity of the offense or conduct, the time elapsed since the offense or conduct and/or completion of the sentence, and the nature of the job.
- Provide preliminary written notice and an opportunity to respond. If an employer makes a preliminary decision to rescind a conditional offer based on conviction history, it must provide written notice identifying the disqualifying conviction(s), a copy of any conviction history report relied upon, and an explanation of the applicant's right to respond with evidence challenging the report's accuracy or demonstrating rehabilitation or mitigating circumstances.
- Allow the required response period and consider additional information. Applicants must receive at least five business days from receipt of the preliminary notice to respond. If an applicant timely notifies the employer in writing that they dispute the accuracy of the conviction history and are taking specific steps to obtain supporting evidence, the employer must provide at least five additional business days. Employers should also be mindful of the regulations governing when preliminary notices are deemed received, as those rules affect the calculation of an applicant's response deadline. Employers must consider information submitted by the applicant before making a final decision.
- Provide final written notice. If the employer ultimately decides to rescind the conditional offer based on conviction history, it must notify the applicant in writing, including any existing procedure to challenge the decision or request reconsideration and the right to file a complaint with the California Civil Rights Department.
These requirements remain in effect notwithstanding the EEOC's withdrawal of its federal guidance.
Additional Background Check Requirements Still Apply
The rescission also does not affect employers' obligations under the federal Fair Credit Reporting Act (“FCRA”) or California's Investigative Consumer Reporting Agencies Act (“ICRAA”). When obtaining covered background reports from third-party screening companies, employers must continue complying with applicable disclosure, authorization, and adverse-action requirements.
Employers should also remain mindful of applicable local fair chance ordinances and laws governing background checks for particular positions. For example, as we previously reported, San Francisco amended its Fair Chance Ordinance, effective August 10, 2026, to impose additional restrictions on the consideration of certain out-of-state criminal history records.
Key Takeaways for California Employers
California employers should not interpret the EEOC's announcement as an opportunity to relax their existing criminal history screening practices. Instead, employers should review their policies and procedures to ensure continued compliance with federal, state, and local requirements, maintain required individualized assessment procedures, and ensure that appropriate notices and response periods are provided before rescinding conditional offers.
Employers should also ensure that hiring managers and human resources personnel understand these continuing requirements and apply criminal history screening standards consistently.
The bottom line: Although the EEOC has rescinded its 2012 guidance, California employers' independent obligations remain unchanged. Employers should continue complying with California's Fair Chance Act and other applicable background check requirements, while reviewing their screening practices to ensure consistency with federal, state, and local law.
