Articles

Employment Law Update: EEOC Rescinds Enforcement Guidance on Arrest and Criminal Convictions

Date: November 5, 2026
The EEOC has rescinded its 2012 enforcement guidance on arrest and conviction records, discarding a long-standing viewpoint that an employer’s use of criminal records could violate Title VII even if the employer did not intentionally discriminate. The EEOC’s 2012 Guidance relied on a disparate impact theory, arguing that blanket exclusions of applicants with criminal convictions could disproportionately affect Black and Hispanic applicants.

The guidance encouraged employers to: (1) Avoid blanket bans on hiring individuals with criminal records; (2) evaluate the nature and gravity of the offense, the time elapsed since the offense and the nature of the job sought; and (3) conduct individualized assessments before denying employment based on a criminal record.

As a result of this action, employers may now have greater flexibility when developing criminal-background-screening policies, but they should proceed cautiously. They should particularly keep in mind that:
  • Many state and local "ban-the-box" laws remain in effect.
  • Fair Credit Reporting Act requirements still apply when using third-party background checks.
  • State occupational-licensing restrictions still apply.
  • Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. 
 

Virginia Law on Criminal Background Checks

Unlike states such as California, Illinois, and New Jersey, Virginia generally does not prohibit private employers from asking applicants about criminal convictions on employment applications.

As a result, most Virginia private employers may: (1) ask about criminal convictions during the application process; (2) conduct criminal background checks before making a hiring decision; and (3) consider convictions when evaluating applicants.

However, employers should ensure that the use of conviction information is job-related and applied consistently to avoid discrimination claims under Title VII.

Also, under Virginia's criminal record sealing framework, certain misdemeanor convictions, deferred dispositions, acquittals, dismissed charges, and other qualifying records may be sealed. Employers generally should not base employment decisions on records that have been sealed by court order.

Lastly, most employers obtain criminal history information through third-party consumer reporting agencies. When using a third-party consumer reporting agency, employers must comply with the federal Fair Credit Reporting Act (FCRA), including:
  1. Written disclosure and authorization before obtaining the report.
  2. Pre-adverse action notice with a copy of the report before denying employment.
  3. Adverse action notice after the decision is finalized.
 
Thus, while rescission removes an important EEOC enforcement document, Virginia employers must continue to consider Title VII, the Fair Credit Reporting Act, sealing laws, and industry-specific statutes. In other words, the EEOC rescission does not eliminate the risks associated with the use of criminal records in hiring decisions. 

Employers reviewing or updating their criminal-background-screening policies in light of the EEOC’s rescission should reach out to Whiteford’s Labor and Employment Practice Group for guidance.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.