Job Applicants with Misdemeanors: What the 2026 DOJ Opinion Says

Hiring decisions involving applicants with criminal records have become increasingly complex. While many employers conduct criminal background checks to reduce hiring risks, rejecting a candidate solely because of a misdemeanor may still expose the company to legal risk — particularly where the decision reflects intentional discrimination against a protected class. A June 2026 opinion from the U.S. Department of Justice's Office of Legal Counsel has significantly narrowed the disparate-impact theory that previously exposed employers to liability based on statistical outcome differences among groups (even though there are significant racial disparities regarding misdemeanors).

The good news is that a criminal record itself is not considered a protected class under federal law. However, that does not mean you can do whatever you want when making hiring decisions based on the applicant's criminal history. Guidance from the Equal Employment Opportunity Commission (EEOC) has long encouraged employers to carefully evaluate each situation rather than automatically disqualifying applicants with prior offenses. Due to the June 2026 opinion from the U.S. Department of Justice's Office of Legal Counsel where they found the EEOC's disparate-impact framework to be unconstitutional, employers now have considerably more latitude to rely on background checks as a job-related screening tool. That individualized approach nonetheless remains a sound practice for guarding against claims of intentional discrimination and for complying with state and local law.

Understanding how misdemeanor charges, criminal convictions, and background checks affect hiring decisions can help you remain compliant while also giving qualified applicants a fair opportunity.

Do Jobs Care about Misdemeanors? i.e. Does a Misdemeanor Affect Employment?

Many applicants wonder whether a misdemeanor will automatically eliminate them from consideration when securing employment. The short answer is no – or, from a legal perspective, it should be no.

Although a misdemeanor is generally considered less serious than a felony, a misdemeanor can affect employment in different ways depending on several factors, such as:

• The nature of the offense
• How much time has passed since the offense occurred
• Whether the offense is related to the responsibilities of the position
• State and local hiring laws
• Industry-specific licensing requirements

Unlike felony convictions, misdemeanors often require more localized searches to uncover because they are frequently reported through county court records rather than statewide databases. Regardless of where the offense appears, employers should evaluate the relevance of the criminal history rather than relying on blanket hiring policies against a misdemeanor record.

The Equal Employment Opportunity Commission's Guidance

The Equal Employment Opportunity Commission (EEOC) has issued guidance cautioning against policies that automatically exclude applicants with criminal histories. In June 2026, however, the Department of Justice's Office of Legal Counsel concluded that the disparate-impact framework underlying much of that guidance reflects an unconstitutional interpretation of Title VII, giving employers considerably more latitude to rely on criminal background checks as a job-related screening tool.

Under the EEOC's guidance, employers were encouraged to perform an individualized assessment before making a final hiring decision. While this is no longer required to defend against a federal disparate-impact claim, many employers continue to apply similar factors as a practical, defensible framework, including:

1. The nature of the crime
   Was the offense violent, financial, drug-related, or otherwise relevant to the job duties?
2. The time that has passed
   An offense that occurred 15 years ago may have little bearing on an applicant's current qualifications or reliability.
3. The duties of the position
   Employers should determine whether the criminal history creates a legitimate business concern for the specific role.

These factors can still help employers guard against claims of intentional discrimination and satisfy state or local requirements, even though weighing them is no longer necessary to defend against a federal disparate-impact claim.

Why Ban-the-Box Laws Matter

One of the biggest changes in hiring practices over the last decade has been the adoption of "Ban-the-Box" laws.

These laws prohibit employers in many states and municipalities from asking applicants about criminal history during the initial stages of the hiring process. Instead, employers typically wait until later in the hiring process (or after a conditional offer has been made) to inquire about criminal convictions or conduct criminal background checks.

Even if your jurisdiction has not adopted Ban-the-Box legislation, delaying criminal history inquiries is generally considered a best practice. It allows employers to evaluate applicants based first on their qualifications, experience, and skills.

This approach also helps reduce the appearance of bias during the job search process and demonstrates a commitment to fair hiring.

Give Applicants an Opportunity to Explain

If a background check reveals misdemeanor charges or other criminal history, you should provide applicants with an opportunity to explain the circumstances.

There may be important information that a background report does not reveal, such as:

• Charges that were dismissed
• Successful completion of rehabilitation programs
• Expunged or sealed records
• Evidence of long-term employment following the offense
• Personal growth and rehabilitation

Providing applicants the opportunity to respond supports fair hiring practices and aligns with recommendations from the EEOC.

Ignoring an applicant's explanation and relying solely on a criminal record can still support a claim of intentional discrimination and may conflict with state or local fair-chance requirements, even though a disproportionate effect on protected groups is no longer sufficient by itself to establish liability under the current federal disparate-impact standard.

Avoid Automatic Disqualification Policies

One of the biggest mistakes employers make is establishing blanket policies that reject every applicant with a criminal history. Instead, hiring decisions should focus on whether the offense directly relates to the responsibilities of the position.

Example: Job-Related Offenses

Suppose an applicant has a conviction for financial fraud and applies for a position handling company finances. In that case, the employer may have legitimate concerns because the offense is directly related to the job duties.

On the other hand, if an applicant has an old misdemeanor for disorderly conduct and applies for a warehouse position with limited customer interaction, automatically rejecting the applicant may be difficult to justify.

The key is demonstrating that the hiring decision is based on business necessity rather than assumptions or stereotypes. Following the Department of Justice's June 2026 opinion, that business-necessity standard is a relatively low bar — employers need only show the practice is reasonable or useful for a legitimate purpose — but a policy that disqualifies applicants for offenses with no plausible connection to the job can still be viewed as arbitrary and is best avoided.

Treat Every Applicant Consistently

Consistency is one of the strongest defenses against discrimination claims.

If you conduct criminal background checks for some applicants but not others, the hiring process could appear discriminatory if those decisions correlate with race, gender, national origin, age, disability, religion, or another protected characteristic.

You should establish written hiring policies that explain:

When Background Checks Are Conducted

Determine at what stage in the hiring process criminal history reviews will occur.

Which Positions Require Screening

Some jobs present greater risks than others and may justify more extensive background investigations.

How Criminal Records Are Evaluated

Use objective criteria rather than subjective assumptions. Applying the same standards to every candidate helps reduce legal risk, particularly with respect to claims of intentional discrimination.

How Criminal Convictions Impact Employment Prospects

Not all criminal convictions carry the same weight – nor should they.

Certain convictions may significantly affect an applicant's employment prospects, while others may have little or no impact depending on the position.

Factors employers commonly consider include:

• Whether the offense involved violence
• Whether the offense involved theft or dishonesty
• Whether the position involves vulnerable populations
• Whether the offense involved driving responsibilities
• Whether the offense could affect workplace safety

The goal is to balance workplace safety with fair employment opportunities.

Professional Licenses May Be Affected

Some occupations require professional licenses issued by state regulatory agencies. Examples include:

• Nurses
• Teachers
• Real estate agents
• Accountants
• Financial advisors
• Insurance professionals
• Healthcare providers

For these careers, certain criminal offenses may affect licensing eligibility even if an employer is otherwise willing to hire the applicant.

Applicants should understand that employment eligibility and licensing eligibility are often separate issues.

The Role of Professional Licensing Boards

Many licensing decisions are made by professional licensing boards, not employers. These boards often review criminal histories independently when determining whether an applicant qualifies for licensure.

Depending on state law, the board may evaluate:

• The seriousness of the offense
• Whether rehabilitation has occurred
• The relationship between the offense and the profession
• The amount of time that has passed

As a result, employers hiring for licensed positions should understand both employment laws and the licensing requirements that govern their industry.

Federal Law and Fair Hiring Practices

Several areas of federal law influence how employers use criminal history during the hiring process.

For example, employers who obtain background reports from third-party screening companies must comply with the Fair Credit Reporting Act (FCRA), which requires proper disclosure, authorization, and adverse action procedures before denying employment based on a background report.

Title VII of the Civil Rights Act continues to address employment discrimination to protect certain groups, i.e. employers cannot make hiring decisions based on an applicant's race, color, religion, sex, or national origin. However, the June 2026 opinion from the Department of Justice's Office of Legal Counsel significantly narrowed that theory: selection tools such as background checks are treated as presumptively job-related and the business-necessity defense requires only that a challenged practice be reasonable or useful for a legitimate purpose. This means that the plaintiff must prove both that the specific practice caused the disparate outcome and that an equally effective, less discriminatory alternative exists.

Together, these laws encourage employers to use criminal history responsibly while minimizing the risk of discrimination.

Best Practices for Employers

You can reduce legal risk while making informed hiring decisions by following several best practices:

1. Delay Criminal History Questions

Wait until later in the hiring process before asking about criminal history or ordering background checks.

2. Conduct Individualized Assessments

Evaluate each applicant based on the offense, the position, and the amount of time that has passed. This approach is no longer required to defend against a federal disparate-impact claim, but it remains a prudent way to guard against claims of intentional discrimination and to satisfy state and local fair-chance requirements.

3. Document Your Hiring Decisions

Maintain records showing why an applicant was or was not hired based on objective business reasons.

4. Apply Policies Consistently

Treat every applicant using the same hiring standards regardless of race, age, gender, disability, religion, or national origin.

5. Consider Rehabilitation

Evidence of rehabilitation, stable employment, education, or community involvement may indicate that an applicant no longer presents the same risk.

Final Thoughts

Following the Department of Justice's June 2026 opinion narrowing disparate-impact liability under Title VII, employers now have somewhat more flexibility in considering criminal history; but that opinion does not change Title VII's continuing prohibition on intentional discrimination, nor does it affect independent state and local ban-the-box and fair-chance requirements. Misdemeanors, felonies, and other criminal convictions should still rarely serve as automatic disqualifiers unrelated to the job.

Employers should instead focus on whether the offense is directly related to the duties of the position, whether enough time has passed, and whether the applicant has demonstrated rehabilitation. You can protect your organization while providing qualified applicants with a fair opportunity.

A criminal record should not necessarily end a job search or eliminate an applicant's future employment prospects. As an employer, your thoughtful and individualized hiring practices will help reduce legal exposure, promote fairness, and build a stronger workforce. While misdemeanors, felonies, and convictions should be treated delicately, they should rarely be automatic triggers for rejecting a job candidate.

For more information or for help with your specific situation, please contact your certified HR expert or book a free consultation today.