EEOC criminal history guidance withdrawn: What employers face

The Equal Employment Opportunity Commission announced on October 29, 2026, that it had withdrawn its EEOC criminal history guidance, following a commission vote the previous day. The withdrawal took effect immediately, but it does not repeal employment discrimination law or require employers to discard lawful screening practices.

For hiring managers, small-business owners and HR teams, the next step is a careful policy review—not an automatic expansion of the reasons to reject an applicant.

What the EEOC criminal history guidance withdrawal changes

The commission rescinded the guidance it originally approved in 2012 concerning employers’ use of arrest and conviction records. According to the EEOC announcement, the withdrawal also does not bring back the earlier policy statements that the guidance replaced.

That distinction matters when deciding what to do with an existing hiring policy. Employers should not assume that an older agency policy has automatically become the replacement framework. Nor should they treat the withdrawal as an instruction to remove every safeguard adopted since the guidance was issued.

The agency expressly says employers are not required to abandon lawful practices adopted in response to the former guidance. If your organization has screening procedures built around that document, their history alone is not a reason to scrap them.

The practical question is what those procedures do today: whether they support consistent, job-relevant decisions and meet the requirements applicable to your workplace. Separate that review from the narrower question of whether the agency guidance remains in effect.

What employers still need to account for

The EEOC states that Title VII continues to prohibit race and national-origin discrimination. That includes employment requirements used as substitutes for intentional discrimination. Withdrawing a guidance document does not make discriminatory screening lawful.

There is also a distinction between the agency’s enforcement priorities and claims brought by individuals. Morgan Lewis explains that private plaintiffs can still bring disparate-impact claims regardless of those priorities.

In plain English, those claims challenge apparently neutral practices that disproportionately exclude protected groups. A screening rule therefore should not be treated as beyond challenge simply because it uses the same wording for every applicant.

State and local requirements remain separate considerations, too. Depending on the applicable law, they can govern when employers ask criminal-history questions, individualized assessments and notices before an adverse decision. The withdrawal does not remove those independent requirements.

For an employer hiring in more than one location, that means a review should account for each location rather than assuming one agency announcement settles every question. Talk to an employment lawyer about which federal, state and local requirements apply before changing the process.

A withdrawn guidance document is not a green light for broader applicant exclusions.

Review the decision, not just the policy wording

A useful review looks beyond whether your handbook still references the former guidance. Start with the decision a manager is actually being asked to make when a criminal record appears.

Ask whether each exclusion relates to the duties of the position. A policy review should make that connection explicit rather than relying only on a general statement that the organization conducts background checks. If the connection is unclear, flag it for discussion with employment counsel instead of assuming the withdrawal resolves the concern.

Next, examine consistency. Are managers applying the organization’s standards as intended? Do they understand that decisions must be made without regard to protected characteristics? Training should address the standards managers are expected to use, not just tell them that the guidance has changed.

Consistency and job relevance belong in the same conversation. Applying an exclusion uniformly does not, by itself, answer whether that exclusion is relevant to the work or raises disparate-impact concerns.

Finally, identify which parts of the process reflect applicable local requirements and which were adopted as organizational safeguards. That distinction can help keep a policy update from accidentally removing a step that still matters.

What to do this week

Make this a focused review with clear questions, rather than a rushed rewrite. A practical sequence for employers is:

• Gather the current screening materials. Review the written policy, criminal-history questions and instructions managers use when considering records. Note references to the withdrawn guidance so counsel can evaluate them in context.
• Check the requirements by location. Ask which rules govern the timing of questions, individualized assessments and notices before an adverse decision. Do not assume these requirements disappeared with the federal guidance.
• Examine exclusions by role. Review how the reasons for excluding someone connect to the duties of the position. Bring unclear or overly broad standards to your employment lawyer.
• Review manager training. Check that managers understand the existing standards and apply them without regard to protected characteristics. Make clear that the announcement alone is not a new rejection standard.
• Keep lawful safeguards during the review. The EEOC says employers need not discard practices adopted under the former guidance. Avoid removing them simply to make the policy look newly updated.

The goal this week is to identify what needs legal review and what can remain in place. A useful outcome might be a list of questions and proposed edits—not necessarily a replacement policy.

Job Elf tip: Before revising a screening rule, write down the job duties it relates to and the question you want your employment lawyer to answer.

Give hiring managers a clear message

An agency announcement can be easy to overread. Keep internal communication narrow and practical: the guidance has been withdrawn, but lawful screening practices can remain, and discrimination requirements still apply.

Avoid telling managers that criminal-history screening is now unrestricted or that individualized review is no longer relevant everywhere. Applicable state and local rules may still govern assessments and other steps.

If policy changes are being considered, distinguish those proposals from the standards managers are currently expected to follow. A clear message reduces room for someone to interpret the headline as permission to create a new exclusion on their own.

The bottom line

The EEOC’s withdrawal changes the status of its guidance, not the need for careful hiring decisions. Employers can retain lawful practices adopted under the former document, while federal discrimination requirements and applicable state and local rules remain relevant.

Review before rewriting. Check job relevance, consistency and location-specific obligations, then talk to an employment lawyer about any proposed changes. The immediate priority is a sound screening process—not a faster route to rejecting applicants.