If you manage a background check program, the federal agency that polices hiring decisions just rewrote its playbook. On June 4, 2026, the EEOC approved a new National Enforcement Plan covering fiscal years 2025 through 2029. The plan decides which of the more than 80,000 discrimination charges the agency receives each year get priority treatment, and screening policies that treat applicants differently, or that different managers apply differently, sit near the top of the list.
Here's what changed, seven steps to take this quarter, and the obligations that didn't move at all.
What Changed on June 4, 2026
The National Enforcement Plan (NEP) replaces the EEOC's Strategic Enforcement Plan for fiscal years 2024 through 2028 and withdraws every district-level enforcement plan along with it. The signed plan directs the agency to operate as one national law enforcement body, with headquarters deploying staff across districts on priority investigations.
It arrives with real capacity behind it. The Commission regained its voting quorum in October 2025 when the Senate confirmed Brittany Panuccio, giving it three sitting commissioners across five seats: Chair Andrea Lucas, Commissioner Panuccio, and Commissioner Kalpana Kotagal. Three votes is enough to approve litigation, rescind guidance, and adopt plans like this one, so after operating most of 2025 without a quorum, the agency can act on its priorities again.
The defining shift is doctrinal. Intentional discrimination, known as disparate treatment, is now the EEOC's top enforcement priority. Citing Executive Order 14281, the NEP commits the agency to eliminating disparate impact theories from investigations "to the maximum degree possible" and states that it will not pursue litigation advancing disparate impact claims.
Several NEP priorities reach hiring and screening directly:
Facially discriminatory policies and broad-based employment practices that result in intentional discrimination, including patterns in hiring.
DEI programs that use race- or sex-based preferences, quotas, or aspirational goals that function as quotas.
Vulnerable workers, including teenagers, low-wage workers, workers with limited literacy or education, and workers with developmental or intellectual disabilities.
Religious accommodation under Groff v. DeJoy, elevated to a standing Chair priority.
Pregnancy protections, with the scope of the Pregnant Workers Fairness Act singled out for development.
National origin claims, including policies that preference guest-worker visa holders or PERM applicants over U.S. workers.
Seven Steps to Align Your Screening Program This Quarter
1. Rewrite your background check policy around job-related criteria. State the screening criteria for each role category: which offenses are disqualifying, why, and what look-back period applies. Then confirm the policy reads identically regardless of race, sex, national origin, religion, pregnancy status, or any other protected characteristic. Facially neutral and consistently applied is the standard that holds up.
2. Audit your adjudication matrices for inconsistent application. Different look-back periods for different groups, waivers granted to some candidates and not others, and managers who override criteria case by case are the fact patterns that turn a neutral policy into a disparate treatment charge. If one plant manager waives screening requirements while another enforces them strictly, that gap is your exposure.
3. Strengthen your individualized assessment process. Before any denial based on criminal history, document how you weighed the nature and gravity of the offense, the time that has passed, and the nature of the job, and record what the candidate said in response to your pre-adverse action notice. "Denied per policy" won't hold up; a written analysis showing you considered the person, not just the record, will. If you're not confident your process qualifies, start by asking whether you're doing individualized assessments at all.
4. Review adverse action workflows end to end. Pre-adverse and final adverse action notices need correct FCRA timing, the required documents (a copy of the report and the summary of rights), and a genuine window for the candidate to respond. KRESS's automated adverse action workflow keeps notice, timing, and documentation correct in every state, and the hiring decision stays with you at each step.
5. Run quarterly consistency audits. Pull screening data and compare denial rates, time-to-clear, and exception approvals across locations, departments, and hiring managers. You're looking for evidence that the same record gets different treatment depending on who reviews it. Find the pattern before an investigator does.
6. Simplify the documents candidates see. The NEP's vulnerable worker priority makes readability a compliance issue. Bring consent forms, disclosures, and notices down to plain language, add translations where your workforce needs them, and give candidates a phone number staffed by a person, not just a portal link.
7. Put your screening provider on the record. Ask how their adjudication logic works, what data sources they rely on, and whether they can produce audit-ready documentation for each decision recommendation. A provider who can't explain their own automated tools is a risk you're carrying. This list of questions to ask your background check provider is a ready-made script for that conversation.
Where Screening Programs Get Caught
The NEP rewards one habit above the rest: consistency. In practice a background check is rarely neutral, because people apply it, and inconsistent application is what converts a defensible policy into an intentional discrimination case. The riskiest patterns are the informal ones: a waiver culture that favors certain candidates, criteria relaxed "just for this location," or look-back periods that flex depending on who's asking.
The same logic now applies to well-intentioned programs. If criminal history criteria are loosened for one demographic group in the name of DEI, the NEP treats the mechanism, not the motive, as the issue: different rules for different groups is the definition of disparate treatment. Fair-chance hiring remains legally sound when it's built on neutral, job-related criteria applied to all applicants, such as longer look-back windows across the board or delaying history inquiries until after initial qualification. Our guide to staying compliant with fair-chance hiring beyond ban the box walks through how to structure that.
Rigid screening logistics are the third trap. A no-exceptions 48-hour window to complete drug testing, identity verification, and paperwork collides with the NEP's religious accommodation and pregnancy priorities. Build a documented exception path for candidates who need scheduling flexibility for religious observance or a pregnancy-related restriction, and train recruiters to use it.
What Didn't Change
The EEOC's 2012 enforcement guidance on arrest and conviction records remains in effect until rescinded or superseded. Its three-factor test, drawn from Green v. Missouri Pacific Railroad, weighs the nature and gravity of the offense, the time elapsed, and the nature of the job. A federal appeals court blocked the EEOC from enforcing the guidance as a binding rule against the State of Texas in 2019, and the NEP's retreat from disparate impact lowers the federal temperature on neutral, consistently applied policies. Neither development repeals the test. It remains federal best practice wherever you hire, and a number of states and cities have written individualized assessment requirements into their own laws.
That's the second constant: state and local law. Ban-the-box ordinances, fair chance acts, and clean slate statutes keep their own timelines and their own enforcers, and our state-by-state compliance guide tracks where each jurisdiction stands. The FCRA didn't move either; adverse action timing and disclosure duties are enforced through regulators and private lawsuits no matter what the EEOC prioritizes. If tracking a shifting federal agenda on top of fifty states' worth of screening law isn't a job you want to own alone, KRESS Compliance Partner monitors these changes and turns them into specific actions for your team.
Frequently Asked Questions
Does the EEOC's 2012 criminal background check guidance still apply in 2026?
Yes. It remains in effect until rescinded or superseded, and the NEP doesn't withdraw it. The practical shift is emphasis: with disparate impact deprioritized, federal risk now concentrates on policies that are facially different or inconsistently applied. State and local individualized assessment mandates are unaffected.
Can my company still use a criminal background check matrix?
Yes, when it's tied to documented, job-related criteria for each role and applied consistently. Add an individualized assessment step before any final denial based on criminal history; the matrix recommends, and your team decides.
How does the NEP affect fair-chance or ban-the-box hiring?
Fair-chance programs built on neutral, job-related criteria applied to all applicants remain compliant. Programs that apply different criminal history standards to different demographic groups could be treated as intentional discrimination, whatever the intent behind them, and state and local fair chance laws continue to apply on their own terms.
Why does the EEOC's restored quorum matter?
The Senate confirmed Brittany Panuccio in October 2025, restoring a three-member voting quorum with two seats still vacant. A quorum lets the Commission vote: on litigation, on rescinding or replacing guidance, and on enforcement plans like the NEP itself. Expect policy to keep moving through 2026.
The EEOC has its quorum back, a signed enforcement plan, and instructions to concentrate resources where cases will have the broadest impact. If you can't show today that your screening criteria are job related and consistently applied, the time to find out is before a charge lands, not after. KRESS, a female-owned screening firm based in Houston, will walk through the screening side of your program with you and show you what defensible looks like: get a quote and put the review on this quarter's calendar.