San Francisco Bans Use of Out-of-State Criminal History for Abortion and Gender-Affirming Care in Hiring

On August 10, 2026, a significant expansion of San Francisco's Fair Chance Ordinance took effect, fundamentally altering how employers process out-of-state criminal records. The city's 'ban-the-box' law, which regulates when and how companies can inquire about criminal history, now carries strict new prohibitions and doubled financial penalties.[1]

The amendment, originally introduced by Supervisor Bilal Mahmood in May and passed by the Board of Supervisors in July, prohibits employers from considering arrests or convictions for conduct that is lawful in California but criminalized elsewhere.

Specifically, the ordinance shields four categories of out-of-state conduct: abortion-related healthcare, spontaneous abortion (miscarriage), gender-affirming care, and drag performances.[2]

The legislative push comes as a direct response to a growing national fracture over reproductive and LGBTQ+ rights. With 13 state legislatures enacting 28 anti-trans bills in early 2026 alone, city officials framed the amendment as a necessary safeguard for individuals seeking refuge in California.

Supervisor Mahmood, who drafted the legislation alongside the Office of Transgender Initiatives, noted that as more people migrate to California for opportunity and safety, local laws must ensure that out-of-state convictions for these activities cannot be weaponized against them in the job market.

For businesses, the new rules apply broadly. Any employer with five or more employees worldwide is covered, provided the applicant or employee works at least eight hours per week in San Francisco.[3]

Crucially, this coverage extends to remote workers. If an employee is physically located in San Francisco for those eight hours, the employer must comply with the city's stringent background check limitations, regardless of where the company is headquartered.[3]

The compliance burden for human resources departments is substantial. Employers conducting nationwide background checks must now implement secondary reviews to ensure that out-of-state convictions related to the protected categories are filtered out before an adverse hiring decision is made.[1][2]

This creates a practical challenge for third-party consumer reporting agencies and the hiring managers who rely on them. Because criminal records in other states may not explicitly label a conviction as 'abortion-related' or 'gender-affirming care,' employers must carefully parse the underlying conduct to avoid illegal discrimination.[2]

Beyond expanding the types of protected records, the amendment imposes strict new procedural deadlines on the adverse action process. Under existing law, employers were already required to conduct an individualized assessment and provide a pre-adverse action notice—a formal communication alerting a candidate that their background check may result in a withdrawn job offer.[1]

Now, if a candidate responds to that notice within seven days with evidence of inaccuracy or rehabilitation, the employer must confirm receipt of that evidence within exactly 14 days.[1]

Furthermore, if the applicant makes a reasonable factual showing that the proposed rejection is based solely on a conviction that does not directly relate to the position's duties, the employer is legally obligated to withdraw the adverse action.[1][3]

The financial stakes for noncompliance have also been raised significantly. The amendment doubles the administrative penalties for violations of the ordinance, turning procedural missteps into costly liabilities.[3]

A first violation now carries a $1,000 fine per affected individual, up from $500. A second violation triggers a $2,000 penalty, and any subsequent violations can cost employers up to $4,000 each.[3]

Employment law experts are advising companies to immediately audit their background screening policies, update adverse action notices, and revise instructions provided to third-party vendors to avoid triggering these heightened penalties.[2]