Two federal developments have converged in the back half of 2026 to reshape how arrest and conviction records are policed in hiring. The Equal Employment Opportunity Commission has filed a noticeably smaller volume of new charges in fiscal year 2026 than in any recent comparable period, and on October 6, 2026, the agency submitted a draft final rule to the Office of Information and Regulatory Affairs to rescind its 2012 enforcement guidance governing employer use of criminal records. A separate June 2026 Department of Justice opinion has argued that the disparate-impact framework that has underwritten Title VII litigation on background checks for fourteen years rests on a constitutionally weak foundation. Together those moves shift the practical question from who enforces criminal-record hiring rules to where the enforcement is now supposed to come from, and the answer for a job applicant with a record depends on which layer of government actually applies.
What the muted FY 2026 docket actually means
Published tracking of EEOC charge activity shows the agency accepting fewer new charges in fiscal year 2026 than at any point in the past several years, and bringing correspondingly fewer new suits. The deceleration is happening at the same time the agency has filed the rulemaking paperwork to formally withdraw the 2012 guidance that told employers how to evaluate criminal records under Title VII. The mechanics of the shift matter more than the headline: the 2012 guidance was not a regulation but an enforcement-priority document, and rescinding it does not change the underlying statute. What it changes is the agency's stated willingness to bring a Title VII disparate-impact case against an employer whose criminal-record screening policy produces a discriminatory result. For a job applicant with a record, that posture change translates into a longer runway between the rejection letter and the federal lawsuit that would have historically followed a flagrant screening rule.
Why the June 2026 DOJ opinion matters for people with records
The Department of Justice issued an opinion in late June 2026 that the disparate-impact framework embedded in Title VII enforcement is constitutionally questionable, an argument that had been working its way through DOJ and the Whitehouse Counsel's office since the early months of the year. The opinion is not binding on the EEOC or on private plaintiffs, but it does signal the position the federal government will take in any friend-of-the-court filing on the disparate-impact question for the foreseeable future. For a private plaintiff with a criminal record who has lost out on a job and is considering a Title VII disparate-impact case, the shift raises the cost of litigating because the federal bench that hears the case can be expected to know about the DOJ position even when the DOJ is not formally a party. The state-law claims under the Fair Credit Reporting Act and the many state-level ban-the-box and Clean Slate statutes are unaffected, which is the practical reason the next section of this article focuses on them rather than on Title VII.
Where the enforcement is actually shifting
Three layers of enforcement are picking up the slack that the EEOC is leaving behind, and each has its own procedural posture. The first is state attorney general enforcement under state fair employment statutes, several of which mirror Title VII's disparate-impact theory and are unaffected by either the EEOC guidance withdrawal or the DOJ opinion. The second is private plaintiff litigation, which is procedurally harder to bring but still active in the state and federal courts and is where the bulk of the post-2012 disparate-impact jurisprudence is now likely to be made and where it is also likely to be contested. The third is local enforcement by city and county human rights commissions, especially in jurisdictions that have adopted Fair Chance hiring ordinances in the past decade and that have their own administrative hearing forums with shorter timelines and looser standing rules than federal court.
What a job applicant with a sealed or expunged record should understand
The shift in federal posture does not weaken any of the state or local protections that apply to a sealed or expunged record. The Fair Credit Reporting Act's section 1681c continues to require consumer reporting agencies to omit sealed and expunged records from background check reports within thirty days of notice, and the failure to do so remains a private right of action with statutory damages. State Clean Slate statutes continue to require courts to seal eligible records automatically and to limit which entities can later access the sealed record. The Clean Slate Guide has covered the operational side of those mechanics in other articles, and what is new under the muted federal docket is that a state-court violation or a state human rights commission filing has become the more reliable venue for a job applicant who believes they have been screened out of an opportunity because of a record that should no longer be in the hiring pool.
What an applicant should do before the year turns
The first practical move is to verify that a previously eligible sealed or expunged record has actually cleared from the consumer reporting agencies that background check vendors pull from, because the FCRA's thirty-day notice window starts at the time the agency receives the sealing order, not at the time the court signs it. The second is to keep dated copies of every application and every rejection letter, because the paperwork trail is the operative evidence in a state human rights commission filing or a private FCRA claim. The third is to identify the local Fair Chance ordinance that applies to the employer and to confirm the employer's specific obligation under that ordinance before raising the issue, because the procedural posture is materially different in a jurisdiction that requires individualized assessment before a denial than in one that only bans the question on the application.