EEOC Withdraws 2012 Criminal Record Guidance, Leaving Rhode Island Employers to State Rules

The U.S. Equal Employment Opportunity Commission voted to remove its 2012 enforcement guidance on criminal records, a move that alters federal oversight but leaves Rhode Island’s stricter state laws untouched for most local businesses. The agency announced the decision Thursday, stating the rescission takes effect immediately. This shift does not restore older policy statements or force employers to abandon lawful practices they implemented based on the previous guidance. For Rhode Island applicants, the rules regarding what appears on a job application form have not changed.

The 2012 document, issued on April 25, advised employers to conduct individualized assessments rather than blanket exclusions for applicants with arrest or conviction records. It explained that an arrest alone does not prove criminal conduct and outlined how the agency viewed disparate treatment and disparate impact under Title VII of the Civil Rights Act. Although the guidance stated on its first page that it did not have the force of law, it shaped federal enforcement approaches for fourteen years. Federal courts had already begun limiting its reach before this week’s vote.

In August 2019, the U.S. Court of Appeals for the Fifth Circuit ruled in Texas v. EEOC that the guidance was a substantive rule the agency lacked authority to issue, barring its enforcement against the state of Texas. The trajectory toward removal accelerated in April 2025 when Executive Order 14281 directed federal agencies to deprioritize disparate-impact enforcement. An internal EEOC memo subsequently ordered the closure of charges based solely on disparate impact by September 30, 2025. The White House Office of Information and Regulatory Affairs logged the draft final rule for rescission on October 6, marking the final step in the process.

Rhode Island’s own legal framework provides distinct protections that extend beyond federal coverage. Under R.I. Gen. Laws § 28-5-7(7), it is unlawful for an employer to ask about arrests, charges, or convictions on a job application. This ban applies to any employer with four or more individuals, whereas Title VII covers only employers with 15 or more. The Rhode Island Commission for Human Rights enforces this state law, which allows employers to ask about convictions during interviews or later stages of the hiring process. Exceptions exist for law-enforcement positions or jobs where federal or state law mandates a conviction as a disqualification.

EEOC Chair Andrea Lucas stated that the rescission reaffirms the agency’s commitment to enforce Title VII within constitutional and congressional limits. She noted that the action does not license unlawful discrimination and that Title VII continues to prohibit discrimination based on race or national origin. Attorneys from Littler and Outten & Golden observed that disparate impact remains written directly into the statute, allowing private workers to file charges and lawsuits independent of the agency’s enforcement budget.

The Commission vote was 2-to-1, though law firms reported conflicting dates for when the vote occurred. Ogletree Deakins cited a Commission statement placing the vote on Wednesday, while Outten & Golden dated it to Thursday. A Sunshine Act notice published on Monday listed the rescission for an open Commission meeting scheduled for 1:00 p.m. ET on Friday. The EEOC clarified that the rescission does not require employers to drop lawful practices adopted in response to the guidance.

In the state legislature, lawmakers reviewed criminal records issues during the 2026 session. Fourteen state attorneys general issued joint guidance on September 17 reaffirming disparate-impact enforcement under their respective laws, though Rhode Island was not among the signatories. The immediate effect of the federal rescission is a change in how the EEOC prioritizes its cases, while the statutory text of Title VII and the specific requirements of the Rhode Island Fair Employment Practices Act remain unchanged for local employers.