On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its 2012 enforcement guidance on the use of arrest and conviction records in employment decisions. The decision took effect immediately. While this marks a shift in federal enforcement priorities, it does not eliminate employers’ responsibilities when conducting criminal background checks.
The decision signals a move away from federal enforcement focused on disparate impact, where seemingly neutral hiring policies may disproportionately affect individuals in protected groups. However, Title VII protections against intentional discrimination remain in place, and state and local fair-chance laws continue to regulate how and when employers can consider criminal history.
What Does This Mean for Employers?
The withdrawal of the guidance does not give employers unrestricted permission to screen out applicants with criminal records. Several important requirements remain:
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Title VII protections remain
Employers cannot make hiring decisions that intentionally discriminate based on protected characteristics, including race and national origin.
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State and local laws still apply
Ban-the-box and fair-chance laws may restrict when employers can ask about criminal history, which records they can consider, and what procedures they must follow.
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FCRA requirements remain in effect
Employers using third-party background screening providers must continue following disclosure, authorization, and adverse action notification requirements.
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Disparate impact remains part of federal law
Although the EEOC is shifting its enforcement priorities, disparate impact remains recognized under Title VII and other federal employment laws.
5 Steps Employers Should Take Moving Forward
Rather than making immediate changes to existing screening practices, employers should take this opportunity to review their policies and procedures.
- Review Background Screening Policies & Applications. Evaluate job applications, background check disclosures, and hiring procedures to ensure they comply with applicable federal, state, and local requirements.
- Evaluate Criminal History in Context. Consider the nature and seriousness of an offense, the time that has passed, and its relevance to the specific position. Avoid blanket exclusions that automatically disqualify applicants based on any criminal record. Document decisions appropriately.
- Verify FCRA Compliance. Review background check disclosures, written authorizations, and pre-adverse and final adverse action notices. Ensure your organization follows the required procedures when making employment decisions based on third-party screening reports.
- Train HR Teams & Hiring Managers. Make sure those involved in recruiting and hiring understand when criminal history can be considered, how to evaluate background check results, and what steps must be followed before making an adverse hiring decision.
- Review State & Local Requirements. Organizations hiring across multiple locations should identify applicable ban-the-box and fair-chance laws. Requirements can vary significantly by jurisdiction, and some impose additional obligations beyond federal law.
The Bottom Line
The EEOC’s decision changes the agency’s enforcement approach, but employers should not interpret it as a reason to relax their criminal background screening practices. Maintaining consistent, job-related hiring procedures and staying current with applicable laws remain important parts of an effective HR compliance strategy.
Contact DCSI to learn more about our HR Consulting and Compliance Audit services.
Frequently Asked Questions: Criminal Background Checks & EEOC Guidance
Did the EEOC rescind its guidance on criminal background checks?
Can employers now automatically reject applicants with criminal records?
Does Title VII still prohibit disparate impact discrimination?
Do ban-the-box and fair-chance hiring laws still apply after the EEOC rescinded its guidance?
What should employers do to maintain compliance with criminal background check requirements?
If your organization has questions about its background screening policies or broader HR compliance practices, DCSI can help evaluate existing procedures, identify potential risks, and provide guidance on moving forward.
Contact DCSI to learn more about our HR Consulting and Compliance Audit services: