EEOC Rescinds Its Criminal Background Check Guidance, but Colorado’s Criminal Background Check Laws Still Apply

John Agbonika, Associate

            On October 28, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Commission”) voted to rescind its 2012 guidance on how employers may use arrest and conviction records, effective immediately.[1]The rescission continues the federal retreat from disparate impact enforcement, but it does not change Title VII of the Civil Rights Act of 1964 (“Title VII”) itself. Colorado employers also remain bound by the state’s laws on criminal history screening.

Background

            For over a decade, the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records (the “2012 Guidance”) was the main federal roadmap for criminal background screening.[2] It explained two ways an employer’s use of criminal records could violate Title VII. The first is disparate treatment: treating applicants with similar records differently because of race, national origin, or another protected trait. The second is disparate impact: applying a neutral policy, such as refusing to hire anyone with a conviction, that disproportionately screens out a protected group.[3]

            Under Title VII, an employer can defend a practice with a disparate impact by showing it is “job related for the position in question and consistent with business necessity.”[4] The 2012 Guidance described how to meet that standard. It recommended a “targeted screen” that considers the nature and gravity of the offense, the time since the offense or sentence, and the nature of the job, ideally followed by an individualized assessment that lets the applicant explain.[5] It also cautioned that an arrest, by itself, does not establish that criminal conduct occurred.[6]

The EEOC Withdraws the 2012 Guidance

            The rescission does not revive the earlier policy statements the 2012 Guidance replaced, and it does not require employers to abandon lawful practices they adopted in response to it.[7] EEOC Chair Andrea Lucas said the step aligns enforcement with “the limits Congress placed on the EEOC’s authority.”[8] She added that Title VII still bars race and national origin discrimination, including job requirements that serve as proxies for intentional discrimination.[9]

            The decision follows the broader federal pullback from disparate impact enforcement that Campbell Litigation covered in June, including the Department of Justice Office of Legal Counsel opinion and the EEOC’s National Enforcement Plan. Critics of the rescission point to the premise of the 2012 Guidance itself: national data showing that some racial and ethnic groups are arrested and convicted at higher rates, so blanket criminal record exclusions screen those groups out disproportionately.[10] Title VII’s disparate impact provision is statutory, so private plaintiffs may still bring those claims even if the EEOC does not.[11]

Colorado Criminal History Rules Remain Unchanged

            Under the Colorado Chance to Compete Act, no Colorado employer may state in a job advertisement or application that people with a criminal history may not apply, or ask about criminal history on an initial written or electronic application.[12] An employer may still obtain an applicant’s publicly available criminal background report at any time, and the Act does not apply to positions where the law bars hiring someone with a specific criminal history or requires a criminal history check.[13] The Division of Labor Standards and Statistics enforces the Act with a warning for a first violation and civil penalties of up to $1,000, then $2,500, for later violations.[14]

            Colorado’s record-sealing statute adds a separate limit. An employer may not require an applicant to disclose information in sealed criminal records, the applicant may state that he or she has not been convicted, and an application may not be denied solely because the applicant declines to disclose a sealed record.[15] In addition, the Colorado Anti-Discrimination Act (“CADA”) continues to prohibit race and national origin discrimination in employment, though it does not expressly address disparate impact. A proposal to write that theory into CADA, which Campbell Litigation discussed in September, is expected to return soon.

Employer Considerations

            Colorado employers should not read the rescission as permission to loosen their screening practices. Criminal history questions should stay off initial applications, and “no felons” language should come out of job postings and application templates. Sealed records should play no part in the decision, and employers should confirm their background vendors are not reporting them. When a record does matter, the decision should be tied to the duties of the specific position, with the reasons documented at the time. Every applicant should be held to the same standard, since the EEOC will still pursue intentional discrimination, and vendor reports require the Fair Credit Reporting Act notices.[16]

            Violations of the Chance to Compete Act bring compliance orders and escalating civil penalties, and overbroad exclusions can still draw private Title VII disparate impact suits and state discrimination charges. Employers that adopted targeted screens and individualized reviews under the 2012 Guidance may keep them in order to have protection on both fronts.

            Campbell Litigation will continue to monitor federal enforcement in this area and the proposed CADA disparate impact legislation.

[1] Press Release, U.S. Equal Emp. Opportunity Comm’n, EEOC Votes to Rescind Enforcement Guidance on Arrest and Conviction Records (Oct. 29, 2026), https://www.eeoc.gov/newsroom/eeoc-votes-rescind-enforcement-guidance-arrest-and-conviction-records.

[2] U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, No. 915.002 (Apr. 25, 2012) [hereinafter 2012 Guidance] (rescinded Oct. 28, 2026) available at https://www.eeoc.gov/sites/default/files/migrated_files/laws/guidance/arrest_conviction.pdf. Enforcement guidance states the EEOC’s view of how a statute applies and how the agency will handle charges; it is not a statute or regulation.

[3] Id. §§ IV–V.

[4] 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2024); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[5] 2012 Guidance, supra note 2, §§ V.B.4 at p. 14, V.B.9 at pp. 18-21 (citing Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977)).

[6] Id. § V.B.2.

[7] Press Release, supra note 1.

[8] Id.

[9] Id.

[10] 2012 Guidance, supra note 2, § V.A.2 at pp. 9-10.

[11] See 42 U.S.C. § 2000e-2(k)(1)(A); id. § 2000e-5(f)(1).

[12] Colo. Rev. Stat. § 8-2-130(3)(a)

[13] Id. §§ 8-2-130(3)(b), (4).

[14] Id. § 8-2-130(5)(a)–(c). The Act creates no private cause of action and no new protected class. Id.

[15] Colo. Rev. Stat. § 24-72-703(2)(d)(I)

[16] 15 U.S.C. § 1681b(b)(2)–(3). The Fair Credit Reporting Act requires disclosure, authorization, and pre-adverse action notices to consumers before vendors issue background reports.