EEOC FY 2026 Results and Arrest-Record Guidance Rescission, October 9, 2026: Notes for HR

Two HR Dive stories published on October 8 and 9, 2026 describe an enforcement agency changing how it works. The U.S. Equal Employment Opportunity Commission closed fiscal year 2026 with a litigation record one Seyfarth Shaw partner described as “historically anemic,” but “big on messaging.” At the same time the agency moved to withdraw one of its best-known pieces of hiring guidance. This note explains what was reported, what it does and does not change for employers, and what HR teams should do now.

The EEOC’s fiscal 2026 in numbers

According to the Seyfarth analysis reported by HR Dive, the EEOC filed 97 merit lawsuits in FY 2026, up slightly from 93 the previous year. Many watchers had expected a surge after a “relatively quiet” FY 2025; it did not arrive. Filings peaked in March (18) and June (19). September, normally a heavy month as the fiscal year closes, saw only 29 filings, against 71 in FY 2023.

What the agency sued about

• Title VII: 52 claims, of which 16 involved religious discrimination.
• Race and national origin: 15 claims, several alleging discrimination against White or American workers.
• Pregnancy- or sex-based claims: 29 of the 97 lawsuits.
• Americans with Disabilities Act: 38 lawsuits.
• Age: only 3 filings, a sharp drop.
• Equal Pay Act and GINA: one filing each.
• Several suits challenged allegedly unlawful diversity, equity and inclusion programmes.

The analysts expect disability discrimination to remain a top priority, but note less focus on “invisible disabilities” such as autism, ADHD and depression.

A more centralised, less staffed agency

Two structural changes help explain the numbers. First, a January rule change lets the Washington, D.C. headquarters “commence or intervene” in almost all litigation; district offices previously handled most of it. Seyfarth’s Scroggins said this gives the agency more message control but “creates a bottleneck.” Second, headcount fell, particularly in the East, West and Southwest. Historically aggressive districts, including New York City and Los Angeles, were described as “unusually quiet,” while Chicago and Philadelphia, two of the agency’s 15 district offices, accounted for nearly a quarter of all filings.

Leadership has also changed. Republican commissioner Brittany Panuccio was confirmed days after the new fiscal year began, restoring the commission’s quorum.

Enforcement by announcement

The most interesting thread in the Seyfarth analysis is how the agency is using publicity. It is leaning on press releases, public statements, social media and LinkedIn videos. It has announced pre-litigation conciliation agreements in both FY 2025 and FY 2026, even though conciliation is “confidential by statute,” which suggests such announcements depend on the employer’s negotiated consent. Announcements of subpoena enforcement actions have also increased; Scroggins said he had to look back more than ten years for a similar press release.

Our reading, which is analysis and not reporting: with fewer staff and a bottleneck at headquarters, public pressure is a cheaper lever than litigation. A press release naming an employer carries reputational cost even if the case is small. One recent example from HR Dive’s feed is an EEOC settlement of $23,000 for a barista who alleged a manager refused a shift swap so he could fast during Ramadan. The dollar amount is small; the publicity is the point.

The 2012 arrest and conviction guidance

The second story concerns guidance that has shaped background-check policies for over a decade. HR Dive reported that the EEOC sent “a final rule rescinding guidance related to conviction and arrest records in employment decisions” to the White House on Tuesday, October 6. (The article also refers to it as a “proposed measure,” and says timelines for review by the Office of Management and Budget and for rescinding the 2012 guidance “remain unclear,” so employers should treat the status as pending.)

What the 2012 guidance said

The document, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act,” set out best practices for screening applicants with any criminal history. Its three central considerations were:

1. the nature and gravity of the offence or conduct;
2. the time that has passed since the offence or conduct, or completion of the sentence; and
3. the nature of the job held or sought.

It also pointed to the number of offences, the person’s employment history before and after the offence, evidence of post-conviction work with no known incidents, and rehabilitation efforts. On arrests, it said “an arrest does not establish that criminal conduct has occurred,” and that individuals are “presumed innocent unless proven guilty.” And it noted that blanket criminal-record exclusions could support a disparate impact finding because of the disproportionate representation of certain groups among those arrested and incarcerated.

Why it is being withdrawn

The rescission follows a broader federal retreat from disparate impact liability. HR Dive traces the steps: an April 2025 executive order condemned disparate-impact liability and directed the attorney general and the EEOC chair to reassess related investigations, lawsuits and positions; an EEOC administrative judge called that directive “highly illegal”; the Department of Justice, prompted by Chair Andrea Lucas, said earlier this year that the EEOC’s earlier disparate-impact guidelines are unconstitutional; the Department of Labor issued a final rule in July eliminating disparate-impact liability from its antidiscrimination regulations; and a federal judge dismissed a lawsuit challenging the EEOC’s non-enforcement of disparate impact liability in 2025.

Why employers should not relax

Littler’s Jim Paretti and Barry Hartstein, quoted by HR Dive, make the central point clearly. Employers should not use arrest or conviction records “however they wish without fear of liability.” A criminal background policy applied more harshly against one protected class than another “will still likely violate Title VII.” The disparate-impact theory “was codified by Congress in Title VII,” and private plaintiffs may still bring such claims. In plain terms: the federal enforcer may be stepping back, but the statute and the plaintiffs’ bar have not gone away.

There are also layers beyond Title VII that this reporting does not cover and that employers must check on their own: state and local fair-chance and ban-the-box laws, and rules on consumer reports used for employment. Those vary by location and are not affected by the EEOC’s decision.

An action list for HR teams

1. Keep individualised assessment. Continue to weigh the nature and gravity of the offence, time elapsed, and relevance to the role. Write down the reasoning.
2. Audit blanket exclusions. Identify any role where a category of conviction triggers automatic rejection and confirm there is a job-related business reason.
3. Check local law. Map each hiring location against its fair-chance, timing-of-inquiry and adverse-action notice requirements.
4. Review religious accommodation processes. With 16 of the EEOC’s 52 Title VII claims in FY 2026 involving religion, scheduling and shift-swap requests deserve a documented, consistent response path.
5. Review DEI programme design with counsel. Several suits challenged allegedly unlawful DEI programmes, and the analysts expect continued focus on DEI-based discrimination and national-origin bias against American workers.
6. Prepare for publicity. If the agency uses press releases as leverage, have a communications protocol for any EEOC contact, including how to respond to a subpoena or a conciliation proposal.
7. Watch disability claims. ADA suits (38) were the second-largest group after Title VII. Keep interactive-process records current.

What to watch next

Three things are worth monitoring. First, whether and when the White House clears the rescission, and what, if anything, replaces the 2012 guidance. Second, whether FY 2027 produces the litigation surge that did not materialise in FY 2026, now that the commission has a quorum again. Third, whether the use of announcements as a compliance tool continues to grow. Scroggins suggested the EEOC may rely more on public pressure than on its shrinking resources to secure compliance; employers that already have strong documentation and consistent processes will be better placed whichever route the agency takes.

The overall message for people leaders is that the federal enforcement picture is changing in tone and tactics, not in the underlying law. Keep the processes that protect candidates and employees, document decisions, and treat a quieter agency as a window to tidy up rather than a reason to stand down.

Sources

• HR Dive, “EEOC’s FY 2026 was ‘historically anemic,’ but big on messaging,” Oct. 9, 2026.
• HR Dive, “EEOC moves to rescind conviction and arrest record guidance from 2012,” Oct. 8, 2026.
• HR Dive, “EEOC obtains $23K for Muslim barista denied accommodation for Ramadan,” Oct. 9, 2026 (headline and summary).

This note is general information for HR professionals and not legal advice. Consult employment counsel about your specific situation.