Putting Fair Chance Employment to the Test: What you need to know about the EEOC Rollback

By Kevin McCracken, Executive Director at The Last Mile.

At The Last Mile, our mission is to create opportunities for personal and professional growth for justice-impacted individuals through in-prison education, workforce training, and reentry support. More than 1,000 of our alumni have come home with skills optimized to build careers after prison. Those skills pay off only when employers are willing to hire the people who earned them.

For 14 years, EEOC guidance supported Fair Chance Employment by discouraging blanket bans on applicants with criminal records. On October 28, 2026, the EEOC voted to rescind that 2012 guidance, and the decision took effect immediately. Keep reading to learn what the guidance did, why it disappeared, and what employers and citizens can do next.

Fair Chance Employment: The Backbone of Rehabilitation

Put simply, Fair Chance Employment means evaluating applicants on qualifications before any consideration of criminal history. It asks employers to weigh a record against the real demands of the job. Some states also require employers to delay conviction questions until late in the hiring process.

Being a fair chance employer goes deeper than the timing of a background check. It means integrating justice-impacted talent across the full employment life cycle, from recruiting to retention and development. Fair chance employers conduct individualized assessments and use human-centered language in job postings. Federal law now models that approach: the 2019 Fair Chance to Compete for Jobs Act delays record questions at federal agencies and contractors until after a conditional offer.

From a hiring perspective, the approach also pays off. Justice-impacted hires are 13% less likely to leave their roles. HR satisfaction with these hires reaches as high as 83%.

Those benefits only reach employers who let candidates with records through the door. That makes the background check the gatekeeper of fair chance hiring, and the practice is nearly universal. In one survey cited by the EEOC, 92% of employers ran criminal background checks on some or all candidates. Employers cited theft prevention, workplace safety, and negligent-hiring liability as their main reasons. Those concerns are legitimate for any organization. Without guardrails, a check that flags every record equally can shut out qualified candidates for good.

The Origins of the 2012 EEOC Guidance

The Civil Rights Act of 1964 transformed American hiring. Its Title VII bars job discrimination based on race, color, religion, sex, or national origin. Yet the law left a gap for people coming home from prison: having a criminal record is not a protected category under Title VII. On its face, nothing stopped an employer from rejecting every applicant with a conviction.

Courts and the EEOC narrowed that gap over five decades. In 1971, the Supreme Court decided Griggs v. Duke Power Co. The Court held that Title VII targets practices “fair in form, but discriminatory in operation.” In that case, a diploma requirement and an intelligence test screened out Black workers without any proven link to the job. Neutral hiring rules could now violate the law if they disproportionately excluded a protected group. Four years later, Green v. Missouri Pacific Railroad applied that logic to criminal records. The court ruled that rejecting any applicant convicted of anything beyond a minor traffic offense was discriminatory.

The EEOC built on those rulings with policy statements in 1987 and 1990. Congress codified the Griggs standard in the Civil Rights Act of 1991. In 2007, the Third Circuit’s El v. SEPTA ruling added a sharper test. Record screens had to separate applicants who pose unacceptable risk from those who do not. In April 2012, the EEOC consolidated this history into one guidance document. It never carried the force of law. Still, it shaped hiring policy at companies across the country.

The Green Factors: A Three-Part Test

The EEOC guidance encouraged a “targeted screen” built on three factors from Green v. Missouri Pacific Railroad:

• The nature and gravity of the offense. A theft conviction, for instance, might matter for a role that handles company funds.
• The time that has passed since the offense or the end of the sentence.
• The nature of the job, including its duties, the level of supervision, and any contact with vulnerable people.

The guidance also urged individualized assessments so applicants could explain their records. Employers would notify the applicant, hear their circumstances, and decide whether an exception applied. Relevant evidence included work history, rehabilitation, education, and references. The guidance also cautioned that an arrest alone does not prove misconduct. As the Green court put it, no business necessity could justify placing every person with a conviction “in the permanent ranks of the unemployed.”

Why the Guidance Mattered for People of Color

Federal data on racial disparities shaped the guidance. A Justice Department study projected that 1 in 3 Black men born in 2001 would go to prison if incarceration rates held steady. For Hispanic men, the projection was 1 in 6, and for White men, 1 in 17. In 2010, African Americans made up 28% of arrests but only about 14% of the population. Broad bans on criminal records therefore excluded Black and Hispanic applicants at disproportionate rates.

Bias showed up at the callback stage too. In Devah Pager’s 2003 experiment, 17% of white applicants with records got callbacks. Only 14% of Black applicants without any record did. Errors in the system compound the problem. A federal study found that only 50% of arrest records in the FBI’s database listed a final disposition. Outdated records and missing case outcomes can exclude applicants on incomplete information.

Why the EEOC Rescinded the Guidance

The 2012 guidance did not fall overnight. For more than a year, Washington had been dismantling the legal theory that gave it teeth. That theory, called disparate impact, covers hiring rules that look fair on paper but hurt one group in practice. An employer can break the law this way without ever meaning to discriminate. A blanket ban on anyone with a record is the classic example.

In April 2025, President Trump signed Executive Order 14281, titled “Restoring Equality of Opportunity and Meritocracy.” It directed federal agencies, including the EEOC, to deprioritize disparate impact enforcement. Fourteen months later, the Justice Department went further. A June 2026 opinion called the EEOC’s earlier reading of disparate impact unconstitutional.

The final steps came quickly. On October 6, 2026, the EEOC sent a draft rule to the White House budget office. Three weeks later, commissioners voted 2-1 to withdraw the guidance. The vote fell along party lines, with Chair Andrea Lucas and Commissioner Brittany Panuccio in favor. Commissioner Kalpana Kotagal dissented. Protecting workers from overbroad screens, she said, “enables them to contribute to the economy and their communities, and to support their families.”

Lucas framed the move as a question of legal limits. She said the decision honors “the limits Congress placed on the EEOC’s authority.” The Legal Defense Fund condemned the rescission and stressed that it does not change the law. For now, the Commission has offered nothing to replace the guidance.

What the Rollback Leaves in Place

Luckily, much of the legal foundation is still standing. Title VII continues to ban race and national origin discrimination in hiring. Lucas herself acknowledged that the rescission “does not give employers license to engage in unlawful discrimination.” An employer who forgives one applicant’s record but rejects another’s because of race still breaks the law.

The courts remain open too. Private plaintiffs can still bring disparate impact lawsuits, even though the EEOC no longer will. The administration’s narrower view of the law “does not amend that text or bind courts deciding private lawsuits,” notes employment attorney Eric Meyer. Judges are also likely to keep asking the same three questions. How serious was the offense? When did it happen? Does it relate to the job? Courts were asking those questions long before the 2012 guidance existed.

Beyond Washington, the safeguards run deep. State and local ban-the-box laws still limit when and how employers can ask about records. The Fair Credit Reporting Act still governs third-party background checks. Even the EEOC said employers need not abandon lawful practices adopted under the 2012 guidance. Attorney Jim Paretti of Littler summed up the risk for any employer tempted to cut corners. “While the EEOC may not bring these cases, the plaintiffs’ bars are under no such obligation.”

What It Means for Justice-Impacted Job Seekers

The real danger lies in the signal being given to employers. Some companies may read the rollback as permission to reinstate blanket bans. To the detriment of the employer and the community at large, each ban removes qualified people before anyone reads their resume.

Fighting back also gets harder. EEOC leadership has reportedly told staff not to pursue disparate impact cases. A job seeker can still file a charge, but the agency will likely issue a right-to-sue letter instead of investigating. The burden then shifts to the individual to find a lawyer and file a private suit. Very few people leaving prison can do that.

The risk is also a quiet one. Unsure employers may drop the individualized review that lets a person explain who they are today. A screening vendor’s settings can reject applicants automatically before HR ever sees the report. Time is on the applicant’s side. Studies cited by the EEOC found that after six or seven years, re-arrest risk approaches that of someone never arrested. Permanent bans ignore that evidence, along with the training, credentials, and work history our graduates bring home.

What Employers and Partners Can Do Now

The federal guidance is gone, but the practices it described are still the best way to hire well and stay within the law. Drawing on advice from employment law firms such as Fisher Phillips and Jackson Lewis, we are asking our employer partners to:

1. Keep individualized reviews. Weigh the offense, the time since, and the job, let candidates respond, and document the decision.
2. Check your background-check vendor. Find out what it rejects automatically before removing any human review.
3. Follow state and local fair chance laws. Keep FCRA disclosure, consent, and adverse-action notice steps in place too.
4. Audit your outcomes. Review who each screening rule excludes and whether a narrower rule would address the same risk.
5. Train your hiring team. Recruiters and managers should apply the same standards to every candidate.
6. Hire on skills. Judge candidates by what they can do and by their record since release.

Partners like The Last Mile can also supply candidates who arrive trained, prepared, and supported.

How The Last Mile Is Responding

We are concerned. Withdrawing federal guidance does not make discrimination lawful, but it makes unfair screening easier to go unchallenged. Our graduates are often the first to feel it.

The rollback shifts more responsibility onto organizations like ours. In response, The Last Mile is expanding direct employer education. Those sessions will cover the Green factors, state laws, and the business case for hiring returning citizens. We will also share our own employment and retention data so employers can judge the results themselves.

Our students are learning to tell their stories with confidence. TLM encourages candidates to talk about it with the hiring manager, rather than wait for the background check. Apprenticeships with the BRIC Foundation, NBCUniversal, and the Indiana Pacers spread our principles across partners. Our 72-hour reentry protocol then ensures every hire arrives supported from day one, with a case manager and a laptop.

Choosing Fair Chance Employment

The EEOC withdrew a document. Its principles still stand in case law, state statutes, and sound business practice. Employers now face a choice about the hiring culture they build. Blanket bans cut them off from motivated, trained talent. Individualized review keeps that talent within reach and builds loyalty. We urge employers to measure people by their skills and their growth. Organizations ready to commit to Fair Chance Employment can reach The Last Mile at info@thelastmile.org. Our graduates are ready to work.

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By Kevin McCracken, Executive Director at The Last Mile.

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