Changes to EEOC Criminal Background Check Guidance: Are Employers Still Responsible for Background Check Compliance?
The U.S. Equal Employment Opportunity Commission (EEOC) has withdrawn its longstanding guidance on the use of criminal history in employment decisions, creating a shift in how the agency approaches discrimination claims involving background checks.
Announced October 29, 2026, the decision eliminates the EEOC's 2012 enforcement guidance on arrest and conviction records. While the change reflects a different federal enforcement approach, it does not remove the laws that govern how employers evaluate criminal history during the hiring process. For employers, the distinction is important. Background screening remains a valuable part of the hiring process, but organizations must continue to understand their responsibilities under federal, state and local laws.
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What Changed With the EEOC Decision?
The EEOC's former guidance provided employers with direction on how criminal history could be considered without creating potential discrimination concerns under Title VII of the Civil Rights Act of 1964.
A central focus was the possibility that criminal screening policies could have an unequal effect on applicants based on protected characteristics, even when an employer did not intend to discriminate. The agency's October 29 decision removes that specific guidance from its enforcement framework. The move is consistent with a broader shift in federal policy away from pursuing discrimination claims based on disparate impact.
However, withdrawing the guidance does not eliminate Title VII protections or establish that every criminal background screening practice is acceptable. Employers should understand that the agency's enforcement priorities have changed, but the underlying legal landscape has not disappeared.
How Criminal Background Checks Can Create Discrimination Risks
Although the previous EEOC guidance has been rescinded, understanding the discrimination concerns it addressed remains important for employers. Title VII recognizes two forms of discrimination that can arise in employment decisions. These distinctions are important because employers should be able to demonstrate that their hiring decisions are based on legitimate business considerations rather than discriminatory practices.
Disparate Treatment
Disparate treatment occurs when an applicant is treated differently because of a protected characteristic. In the context of background checks, this could happen if an employer rejects candidates of one race for a particular criminal conviction but considers applicants of another race with the same record.
Disparate Impact
Disparate impact involves an employment practice that appears neutral but disproportionately affects individuals within a protected group. For example, an organization that automatically rejects every applicant with a criminal record could unintentionally exclude certain groups at higher rates.
Why Employers Still Need to Be Careful
The rescission does not mean employers are free to disregard criminal background check requirements. Even without the 2012 guidance, several legal considerations continue to affect how organizations conduct employment screening.
State and Local Fair-Chance Hiring Laws
State and local governments continue to regulate how employers can consider criminal records during hiring. Depending on the jurisdiction, employers may face restrictions on when criminal history can be requested, which offenses can be considered, and what procedures must be completed before an applicant is disqualified.
Some jurisdictions also require employers to evaluate an applicant's circumstances before making a final decision based on criminal history. These differences can create additional compliance challenges for businesses with employees or applicants in multiple states. Employers should not assume that the federal policy change overrides existing state or local requirements.
Federal Anti-Discrimination Protections
Title VII continues to prohibit discrimination based on protected characteristics, including race and national origin. The EEOC's decision changes its position on the enforcement guidance, not the underlying federal protections. Employers that apply criminal screening requirements inconsistently or use them to intentionally discriminate may still face legal consequences.
Fair Credit Reporting Act Requirements
Employers that rely on outside screening companies to obtain criminal background information must continue following the Fair Credit Reporting Act (FCRA). The law establishes responsibilities for employers using third-party consumer reports during the hiring process. These include providing applicants with required disclosures, obtaining authorization and following specific procedures before taking adverse employment action based on information in a report. The EEOC's announcement does not change these requirements.
What Should HR Departments Do Now?
Rather than making immediate changes to hiring procedures, employers should use this development as an opportunity to evaluate their current background screening practices.
A proactive approach can help organizations identify potential compliance gaps while maintaining effective hiring standards.
HR departments should focus on several areas, including evaluating current screening policies, establishing job-related screening practices, reviewing state and local regulations, maintaining consistency in hiring decisions, verifying third-party screening procedures and educating hiring managers on the organization's screening procedures.
The Bottom Line
The EEOC's decision to withdraw its 2012 criminal background check guidance signals a change in federal enforcement priorities, but it does not eliminate employers' responsibilities when evaluating applicants with criminal records. Federal anti-discrimination protections remain in place, FCRA requirements continue to apply and state and local fair-chance hiring laws are unaffected by the rescission.
When it comes to hiring compliance, a change in enforcement guidance is not a reason to overlook existing legal obligations. Maintaining sound screening practices can help organizations protect their businesses while making fair and informed employment decisions.
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