The period since late September 2026 has brought two Equal Employment Opportunity Commission (“EEOC”) developments that employers should have on their radar. First, the agency has taken formal steps to rescind its long-standing 2012 guidance on the use of arrest and conviction records in employment decisions, a change that will affect how the EEOC evaluates background check practices but will leave other sources of liability in place. Second, the EEOC has filed suit against an employer alleging “anti-American” national origin discrimination in the H-1B visa context. Both actions track the priorities of the EEOC’s National Enforcement Plan, which moves the agency away from disparate impact theories and toward intentional discrimination claims, including claims brought on behalf of U.S. workers. Below, we summarize each development and what it means for employers from a risk management perspective.

1. The EEOC Moves to Rescind Its 2012 Criminal Background Check Guidance

On October 6, 2026, the Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) received a draft final rule from the EEOC that would rescind the agency’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. If OIRA approves the draft, the EEOC is expected to publish the final rule and rescind the guidance, likely effective upon publication. The timing remains uncertain while the rule is under White House review.

The 2012 Guidance

For more than a decade, the 2012 guidance has shaped how employers use criminal history in hiring. Among other things, it:

• Explains that criminal history screening could violate Title VII of the Civil Rights Act of 1964 (“Title VII”) under both a disparate treatment theory (e.g., applying screening rules differently based on a protected characteristic) and a disparate impact theory (e.g., a neutral policy that disproportionately excludes protected groups).
• Distinguishes arrests from convictions, stating that an arrest alone does not establish that criminal conduct occurred.
• Encourages individual assessments considering the nature and seriousness of the offense, the time elapsed since the offense or completion of sentence, and the nature of the job (the so-called “Green Factors”).
• Recognizes federal law disqualifications as a defense, but takes the position that compliance with state or local background check requirements is not a defense to a federal discrimination claim.

Why It Matters (and What Has Not Changed)

The proposed rescission is consistent with the National Enforcement Plan, under which the EEOC has committed to eliminating disparate impact theories in its investigations and litigation “to the maximum degree possible.” If rescission of the criminal history guidance is finalized, the practical effect is that the EEOC is far less likely to open investigations or bring litigation based on a background check policy’s statistical effect alone. That said, rescission does not eliminate risk, for the following reasons:

Private Litigation Remains Possible. Disparate impact liability is codified in Title VII itself and has long been recognized by the U.S. Supreme Court, so the plaintiffs’ bar may continue to bring these claims even if the EEOC does not. Disparate treatment claims remain available to both private plaintiffs and the EEOC. Employers that can show their criteria are job-related and consistent with business necessity, and that those criteria are applied consistently, will be best positioned to manage that risk.

State and Local Law Still Applies. Some jurisdictions have adopted ban-the-box laws and fair chance hiring requirements that are at least as demanding as the 2012 guidance, and many state anti-discrimination laws recognize disparate impact liability.

Consistency Remains a Sound Compliance Practice. With the EEOC focused on intentional discrimination, inconsistent application of a criminal history policy is a likely basis for a charge. A uniformly applied, documented policy helps reduce that risk.

The Fair Credit Reporting Act (“FCRA”) Is Unaffected. Employers using third-party background check vendors must continue to comply with the FCRA disclosure, authorization, and adverse action requirements.

2. The EEOC Sues Over an Alleged “ONLY H1B” Hiring Preference

On September 29, 2026, the EEOC filed suit in the U.S. District Court for the Northern District of California against SibiTalent Corp., a Texas-based information technology staffing and recruiting agency (EEOC v. SibiTalent Corp., No. 3:26-cv-11106). The EEOC alleges that SibiTalent violated Title VII by refusing to refer an American applicant for a position because of his national origin.

According to the EEOC, a SibiTalent recruiter emailed an American database developer about a business data analyst role with a client, flagging the opportunity as “ONLY H1B.” Because the role was available only through referral, the applicant could not apply directly. When the applicant asked whether it was legal to limit the role to H-1B visa holders, the recruiter allegedly replied, “Yeah,” and then stopped responding when the applicant asked for more information. SibiTalent allegedly referred candidates of non-American national origin instead. The complaint further alleges that SibiTalent’s business model relies heavily on recruiting candidates who are not of American national origin and that recruiters were directed to screen for H-1B status.

In a press release regarding the lawsuit, EEOC Chair Andrea Lucas stated that “[e]mployers and employment agencies cannot shut qualified Americans out of job opportunities by using unjustified visa requirements as a proxy for national origin discrimination,” and pledged that the agency will “vigorously enforce” the law to protect American workers. The suit follows the EEOC Chair’s September 2026 social media videos soliciting charges of anti-American bias, including from workers who were laid off and asked to train guest worker visa holders as their replacement, and reflects the National Enforcement Plan’s express focus on practices that prefer guest worker visa holders or permanent labor certification (“PERM”) applicants over U.S. workers.

Title VII claims brought on behalf of American workers in the H-1B context have little precedent, and the case remains at the pleading stage; the allegations have not been proven. Still, the suit confirms that the EEOC is willing to litigate these theories and is actively soliciting charges. Employers that sponsor visa workers or rely on staffing agencies should expect closer scrutiny of how job requirements are written and communicated, and should take steps now to reduce any risk in these areas.

What You Should Do: Practical Recommendations for Employers

Maintain Current Background Check Practices. Employers should not make immediate changes to their background check programs while the rescission is under review. Criminal history screening should remain tied to the requirements of the position, be applied consistently, and be supported by individualized assessments where appropriate. These practices help defend against both disparate impact and disparate treatment claims, each of which remains available under Title VII. Employers should also continue to comply with applicable state and local fair chance hiring laws and the FCRA, none of which is affected by EEOC action.

Audit Screening Decisions for Consistency. Even without the 2012 guidance, inconsistently applied screening criteria can support disparate treatment claims by applicants or the EEOC, as well as claims under state and local law. Employers should review whether criminal history criteria are applied uniformly across all applications, regardless of an applicant’s race, national origin, or other protected characteristic. This includes confirming that decision-makers document the job-related reasons for any adverse decision based on criminal history.

Review Job Postings and Recruiter Communications. Employers should review job advertisements, qualification criteria, and internal and external recruiting communications for language that limits or prefers candidates based on visa status, such as “H-1B only,” “visa holders preferred,” or references to PERM candidates. Any such language should be removed unless counsel has confirmed a lawful basis for it.

Evaluate Relationships with Staffing Agencies and Recruiters. Employers that rely on third-party recruiters should review the instructions and job requirements they provide to those vendors to ensure U.S. workers are not being screened out on the basis of national origin, and should consider including compliance representations and indemnification in their vendor agreements.

Coordinate Immigration and Employment Compliance. Employers that sponsor H-1B visa holders, PERM applicants, or other sponsored workers should coordinate with immigration and employment counsel so that sponsorship processes comply with both immigration requirements and Title VII. This review should also include training for HR personnel and hiring managers on the EEOC’s current enforcement priorities.

Conclusion

Together, these developments reflect the EEOC’s continued shift away from disparate impact theories and toward intentional discrimination claims, including national origin claims brought on behalf of American workers.

Our Labor and Employment practice group regularly advises employers on background screening, hiring, and national origin discrimination compliance, as well as the full range of business immigration matters, from visa sponsorship to worksite compliance. For questions about these developments, or for help reviewing your policies, please contact a member of our team.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}