Last week, the EEOC voted 2-1 to rescind its 2012 guidance on arrest and conviction records. If you're wondering whether criminal background checks are now a free-for-all for employers, I'm here to tell you they're not.

The EEOC's guidance was never the law. Title VII is. Disparate impact is written into the statute, and private plaintiffs don't need the EEOC's blessing to bring those claims. Disparate treatment (applying harsher screening standards to applicants because of race or national origin) is still illegal. And the Fair Credit Reporting Act, along with state and local fair-chance and ban-the-box laws, haven't gone anywhere.

What changes is agency enforcement. That's it. The reality is that the EEOC has largely moved away from disparate impact cases. Expect more right-to-sue letters and fewer EEOC lawsuits. But those claims won't disappear. They'll move into court, where you're the defendant.

Here's what the 2012 guidance said:

Arrests aren't convictions. An arrest alone doesn't prove anyone did anything wrong.

Convictions can justify an exclusion, but the offense needs to matter to the job. Embezzlement matters for a bookkeeper. It matters a lot less for a forklift operator.

Blanket bans are a red flag. Relevance depends on the nature and gravity of the offense, how much time has passed, and the nature of the job.

Individualized assessments matter. Give applicants an opportunity to explain their records before pulling an offer.

So what should employers do now that the EEOC has rescinded its guidance?

1. Keep your process. The guidance is gone, but its logic remains a sound way to defend against a Title VII disparate impact claim: job-related and consistent with business necessity.

2. Don't turn arrests into automatic rejections. Without more, an arrest record is a weak reason to reject an applicant.

3. Audit blanket exclusions. A "no felonies, ever" policy invites legal scrutiny unless a law requires it.

4. Apply your screens consistently. Inconsistent enforcement can become evidence of disparate treatment.

5. Document your reasons. If you reject someone because of a criminal record, write down the offense, how old it is, and why it matters to the job.

6. Follow the FCRA. When using third-party background reports, disclosure, authorization, and applicable pre-adverse and adverse action notice requirements still apply.

7. Check state and local law. Fair-chance rules vary by jurisdiction. Know yours before changing anything.

8. Train your hiring managers. Managers who improvise create risk. Give them a process and make sure they follow it.

Employers, the EEOC may have stepped back. Plaintiffs' lawyers haven't. Plan and act accordingly.

     

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"Now I know what tear gas smells like" is not what a parent wants to hear from a child who is living 4,500 miles away, separated by an ocean. But it's also the reality of being in France in October 2026.

On the latest episode of The Norah and Dad Show, Norah shares what it's really like on the ground in France, living through the current wave of protests as a student. Yes, there is tear gas, but she says she feels no less safe than she would at a school in the U.S. She also says the coverage fixates on the looting—which may not even be coming from the protesters—because that's what gets attention.

Norah also recounts her 20-hour bus ride to Luxembourg to see Courtney Barnett in concert and getting lost in the Paris Metro during her layover. She also tells the story of buying a guitar off Facebook Marketplace from a sweet widower in his 70s in Aix-en-Provence. Here is a preview of that story.

 

You can hear all about on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, in your browser, and everywhere else you get your podcasts.  

Here's what I read this week that you should read, too.

Company's DEI policy made White men 'second-class' candidates, judge rules — HR Dive

EEOC's Lawsuit Over a Women-Only Work Event Clears Its First Court Hurdle — The Employer Handbook Blog

Third Circuit: No FLSA "Overtime Gap Time" Claims — Lawffice Space

Can Opposing Counsel Reach Your Employees' Personal Phones? The Answer May Depend on Your Policies — EntertainHR

Compliance Is Not Prevention – Felix P. Nater, CSC, Nater Associates Ltd. — Nater Associates

Recruiters Don't Know What Hiring Managers Want. The Real Failure Starts Before the Job Is Posted — Evil HR Lady

Leaders Need to Grapple with Employee Ambivalence on AI — Harvard Business Review

What Will You Do With Your Employee's "Agents"? — Connecticut Employment Law Blog

Clio Says AI Is Boosting Billable Hours: Maybe I Was Wrong. Or Maybe Not. — Above the Law

3 workplace horrors that keep employment lawyers up at night — Employment & Labor Insider (Constangy)

my coworker goes overboard with grisly Halloween decorations — Ask a Manager

What Brews to Barns Could Mean for Your Brewery's Tax Bill — Brewers Association

Remember When: The Hooters Open Live Aid in America to the Dismay of the Event's Main Organizer in 1985 — American Songwriter

     

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Your company's next employment plaintiff might not have a lawyer. 

But they have ChatGPT, unlimited discovery and motions to draft, and all the time in the world. You have attorneys who bill by the hour. 

That's a problem. 

Pro se employment filings jumped 56% in 2025, from 4,100 to 6,400. Lex Machina's 2026 report found unrepresented plaintiffs filed more than 16% of federal employment cases in 2025, up from under 10% in 2021. I expect that number to keep growing. 

AI is helping fuel the surge. A chatbot can draft a professional-looking complaint and churn out motions in minutes. It can also reinforce what an unrepresented plaintiff wants to believe about the strength and value of their case.

Take Donaldson v. Hiland Dairy. A magistrate judge recommended dismissing a former employee's Title VII claim as time-barred. He responded with 29 objections totaling 677 pages, much of it AI-generated answers to Google searches that had little to do with the limitations issue. The Texas federal court dismissed the case with prejudice.

By one estimate, defending a pro se case costs 10% to 15% more than a typical employment claim. Here's why.

A plaintiff's lawyer is a filter. They decline cases that aren't worth bringing, tell clients when a claim is weaker than they hoped, and put a realistic number on what it's worth. Lex Machina found that pro se plaintiffs frequently get knocked out on procedural defenses like failure to exhaust administrative remedies or the statute of limitations. A lawyer would likely have caught those problems before anything was filed.

Then there's the math. The plaintiff isn't paying a lawyer. You are. They can generate another motion in mere minutes. Your attorneys spend billable hours figuring out how to respond.

And the usual exit ramp is harder to find. Pro se cases settle far less often than represented ones, frequently because plaintiffs have unrealistic expectations about damages, and nobody has reset them. Among cases decided on the merits, these plaintiffs lose at better than 40 to 1. You'll probably win. You'll just pay for the whole trip.

So what do you do? Treat it as a real lawsuit. Courts still read pro se filings generously, and a sloppy response is how a weak case gets a second life. Raise exhaustion and limitations defenses early, and push for a scheduling order and discovery limits before the motions pile up.

Then tell your CFO to budget more, not less. And if those AI-generated filings cross the line into frivolous, talk to your lawyer about whether Rule 11 sanctions could recover some of the fees spent responding.

Pro se used to mean cheap. Not anymore.

      

That's how this story allegedly began for Boeing employee VyVy Nguyen.

According to a lawsuit just filed in Washington state court, Nguyen's supervisor encouraged her to entertain the advances of senior manager Brandon Mitchell, telling her, "It could benefit us all." 

Then it got much worse.

When she became pregnant and refused to have an abortion, Mitchell allegedly wanted nothing further to do with her or their child.

Surely HR stepped in? Not according to the lawsuit. Nguyen says her supervisor told coworkers about her pregnancy and suggested she could lose her job. She reported it to HR, which assigned an investigator who interviewed her but allegedly never followed up. In November, she is expected to return to her regular assignment, under the same supervisor, in the same building as Mitchell.

She sued for hostile work environment and disparate treatment. She also alleges negligent hiring and retention. According to the complaint, Mitchell's girlfriend told her he had been fired from a prior job for sexual misconduct and had a history with subordinates. If Boeing knew, or should have known, that's an even stronger liability case.

These are allegations, not proven facts. Boeing and the individual defendants deserve their day in court. But if even a fraction of this complaint is substantiated, it's a spectacular failure of workplace accountability.

Employers, a beautifully written anti-harassment policy is worthless if management ignores it, enables the misconduct, or participates in it.

Boeing builds airplanes. It knows catastrophic failures rarely happen without warning signs. The same is true of workplace harassment.

If even some of these allegations are proven, Boeing will have more than earned its place on my list of 2026's worst employers.

      

"Making a mountain out of a molehill."

That's what TransDigm's then-CEO allegedly told its general counsel when she raised a pattern of sexual assault and harassment at the company's management meetings. An Ohio appellate court just sent her entire case to a courtroom instead of an arbitrator.

She reported 2021 and 2024. Both men were fired. She alleges each still got a substantial severance package, with no contract requiring one.

She also alleges that CEO Michael Lisman asked what she did to cause the 2024 assault and why it took so long to report. He allegedly told her that he doubted a woman with a family could be general counsel. He called harassment training a "waste of time." And in July 2025, she was told she'd be replaced by "an objectively less qualified male."

Warren sued. The trial court dismissed her discrimination, harassment, and retaliation claims, and stayed the rest of the case, including a breach of contract claim, under the arbitration clause in her employment agreement.

The appellate court reversed. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act lets a person alleging harassment elect court over a predispute arbitration agreement. If the harassment claim survives a motion to dismiss, it is "by definition nonfrivolous," and the EFAA applies.

Warren's survived. TransDigm argued that firing both men was corrective action and that the conduct wasn't severe or pervasive. The court called those proof questions, not pleading questions. The retaliation claim survived too.

Then the kicker. The EFAA doesn't just free the harassment claims. The agreement is unenforceable as to the entire case. Thus, even a claim for breach of the very agreement that contains the arbitration clause is not arbitrable and must be heard in court.

So here's my bigger question: do you really want arbitration anyway? Businesses favor arbitration for privacy, speed, lower fees, and less risk of a jackpot jury verdict. In my experience, however, it doesn't limit discovery, shorten the case, cut the expense, or hedge your risk. In fact, because you pay for the arbitrator's time, it often costs more.

If privacy matters most to your business, by all means keep using arbitration clauses. Just know that one sexual harassment claim is going to shred that agreement. 

Otherwise, before you put a broad arbitration clause in your next agreement, consider a jury-trial waiver instead, which at least hedges against a runaway jury.

Arbitration promises privacy. It rarely delivers anything else, assuming its it's enforceable in your case at all. And if it rarely delivers, why require it in the first place?

     

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