EEOC Withdraws Criminal Background Check Guidance: What Employers Need to Know

Updated November 6, 2026

The U.S. Equal Employment Opportunity Commission (EEOC) has withdrawn its longstanding guidance on using arrest and conviction records in employment decisions, marking a significant shift in federal hiring policy.

But does that mean employers can change how they conduct criminal background checks?

Not necessarily.

On October 29, 2026, the EEOC announced that it had voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. The rescission took effect immediately.

While the guidance is no longer in effect, Title VII's prohibition against unlawful employment discrimination remains unchanged. Employers must also continue complying with applicable background-check laws and industry-specific requirements.

Here's what employers should know.

What Did the EEOC Change in October 2026?

The EEOC withdrew its 2012 enforcement guidance addressing how employers' use of criminal records could implicate Title VII of the Civil Rights Act.

That guidance had addressed issues including:

• The use of arrest and conviction records in employment decisions.
• Potential discriminatory effects of criminal background screening policies.
• The relationship between criminal history and job responsibilities.
• Individualized consideration of applicants' circumstances.

The October 2026 action rescinds that particular guidance. It does not repeal Title VII or create a new federal law governing background checks.

The EEOC also clarified two important points:

1. The rescission does not automatically reinstate older policy statements that the 2012 guidance had superseded.
2. Employers are not required to abandon lawful screening practices they adopted in response to the former guidance.

What this means for employers: The EEOC's enforcement guidance has changed, but employers should not assume their existing legal obligations have disappeared.

Read the EEOC's official October 29 announcement.

Does the Rescission Mean Employers Can Reject Applicants Based on Criminal Records?

Employers may consider criminal history when permitted by applicable law, but the EEOC's decision does not authorize unlawful discrimination.

Title VII continues to prohibit employment discrimination based on protected characteristics, including race and national origin.

In its announcement, the EEOC specifically emphasized that employers cannot use employment requirements as substitutes for intentional discrimination.

For example, an employer that applies a criminal background screening standard differently to applicants because of their race or national origin may still face Title VII liability.

Employers should also be mindful that facially neutral hiring practices can raise legal questions under applicable antidiscrimination law, depending on the circumstances.

The key distinction: Withdrawing agency guidance is not the same as eliminating the underlying law.

Do Employers Still Need to Conduct Individualized Assessments?

The rescission removes the EEOC's 2012 guidance as an agency policy document. It does not establish a universal rule requiring or prohibiting individualized assessments.

Whether a particular employer must conduct an individualized review depends on applicable federal, state, local, and industry-specific requirements.

For many employers, evaluating the relevance of a criminal record to a particular position remains a sensible risk-management practice.

Consider a hiring decision involving an applicant with an older conviction unrelated to the responsibilities of the position.

An employer may benefit from reviewing the nature of the offense, the time that has passed, and the duties of the job before making a decision.

This can help the employer evaluate the information consistently and avoid unnecessary exclusions.

What employers should do: Review existing background-check procedures with qualified counsel before removing individualized assessment steps or changing automatic disqualification policies.

What Background Check Laws Still Apply?

The EEOC's decision does not eliminate other federal, state, or local requirements.

Title VII of the Civil Rights Act

Employers remain prohibited from engaging in unlawful employment discrimination based on protected characteristics.

Background-check policies should be applied consistently and reviewed for compliance with applicable antidiscrimination law.

Fair Credit Reporting Act (FCRA)

Employers using third-party background screening companies generally must comply with the Fair Credit Reporting Act.

Depending on the circumstances, FCRA obligations include:

• Providing a clear, standalone written disclosure before obtaining a background report.
• Obtaining written authorization from the applicant or employee.
• Providing a copy of the report and a summary of FCRA rights before taking adverse action based on the report.
• Providing required notices after an adverse employment decision.

The EEOC's rescission does not change these requirements.

For additional information, review the FTC's Background Checks: What Employers Need to Know.

State and Local Employment Laws

Employers must also review applicable state and local restrictions on criminal history inquiries and employment decisions.

Some jurisdictions have fair-chance hiring or ban-the-box requirements that regulate when employers may ask about criminal records or how that information may be considered.

These laws are separate from the EEOC's withdrawn guidance.

Industry-Specific Screening Requirements

Certain positions and industries have mandatory criminal background screening or disqualification requirements.

These may apply in healthcare, education, childcare, financial services, and positions involving vulnerable populations.

Employers should continue following all applicable screening and clearance requirements.

What Does This Mean for Pennsylvania Employers?

Pennsylvania employers should be particularly careful not to interpret the federal guidance change as eliminating state-level obligations.

Under Pennsylvania's Criminal History Record Information Act, employers generally may consider felony and misdemeanor convictions only to the extent they relate to an applicant's suitability for the position.

Pennsylvania law also includes requirements involving notice when a decision not to hire is based in whole or in part on criminal history information.

Additional restrictions may apply depending on the employer's location, industry, and position.

For example, certain healthcare and education roles are subject to specific criminal history clearance requirements.

What Pennsylvania employers should do: Review criminal history screening practices against Pennsylvania law, applicable local ordinances, and any industry-specific clearance requirements before making policy changes.

Employers in Ohio and West Virginia should similarly review their own state and local obligations.

Five Steps Employers Should Take Following the EEOC Announcement

The EEOC's decision does not mean every employer needs to rewrite its hiring policies immediately.

It does provide an opportunity to review whether current practices are legally compliant, consistently applied, and appropriate for the positions being filled.

1. Review your background-check policy

Identify whether your written policies reference the EEOC's 2012 guidance or contain requirements based specifically on that document.

Determine whether updates are appropriate before making changes.

2. Evaluate automatic disqualification rules

Review policies that automatically exclude applicants based on certain criminal records.

Consider whether those exclusions are required by law, related to job responsibilities, or otherwise legally supportable.

3. Confirm FCRA compliance

If your organization uses a third-party background screening provider, verify that disclosure, authorization, and adverse-action procedures remain compliant.

4. Train hiring managers

Make sure managers understand that the withdrawal of guidance does not eliminate antidiscrimination obligations.

Hiring decisions should follow established company procedures and applicable law.

5. Review state, local, and industry requirements

Organizations operating across multiple jurisdictions should confirm that screening practices account for applicable differences.

Employer takeaway: Avoid making immediate policy changes based solely on the EEOC announcement. Review your practices, identify potential gaps, and consult appropriate advisors before implementing revisions.

Frequently Asked Questions About the EEOC's 2026 Background Check Guidance Rescission

Did the EEOC eliminate criminal background check restrictions in 2026?

No. The EEOC rescinded its 2012 enforcement guidance, but Title VII, the Fair Credit Reporting Act, and applicable state and local laws remain in effect.

Can employers still conduct criminal background checks?

Yes. Employers may generally conduct lawful criminal background checks, subject to applicable disclosure, authorization, antidiscrimination, and other legal requirements.

Are employers required to change their hiring policies?

No. The EEOC stated that rescinding the guidance does not require employers to abandon lawful practices adopted in response to it. Employers should evaluate whether their existing policies remain appropriate.

Does the EEOC rescission eliminate individualized assessments?

No universal conclusion follows from the rescission. The former EEOC guidance is withdrawn, but individualized review may still be required under other applicable laws or appropriate based on the circumstances.

Does the FCRA still apply to employment background checks?

Yes. Employers using third-party background reporting companies generally remain subject to applicable FCRA disclosure, authorization, and adverse-action requirements.

Does the EEOC change affect Pennsylvania employers?

Yes, the federal guidance change is relevant to Pennsylvania employers, but it does not override Pennsylvania criminal history employment laws or applicable local and industry-specific requirements.

The Bottom Line for Employers

The EEOC's October 2026 decision changes federal enforcement guidance, not the underlying requirement to make lawful, nondiscriminatory hiring decisions.

For employers, the priority is understanding what changed without overlooking the requirements that remain in place.

At CTR Payroll | HR, we understand that keeping up with evolving employment regulations can be challenging, especially when changes create uncertainty about established HR practices.

Our HR Services team helps employers navigate workplace compliance questions, review policies, and strengthen their HR processes, backed by the personalized support that sets CTR apart.

Connect with CTR Payroll | HR to learn how we can support your organization's HR and compliance needs.

This article is provided for general informational purposes and does not constitute legal advice. Employers should consult qualified legal counsel regarding their specific background-check practices and applicable requirements.