Is Employment Discrimination for Criminal Record Illegal?

Employment discrimination for criminal record can be a sticky situation for employers and employees. While a potential or current employee may just want a job, the employer still has a responsibility to provide a safe working environment. An employee with a history of criminal activity can pose a liability problem for an employer.

Therefore, the answer isn’t quite straightforward.

Is Employment Discrimination for Criminal Record Illegal?

Depending on the industry, an employer may be allowed to refuse to hire someone with a criminal record. However, for the most part, employers are not allowed to use an arrest record in hiring decisions.

Laws that Protect Employees from Employment Discrimination for Criminal Record

Since the Civil Rights Act of 1964 was passed, employment discrimination against individuals with a criminal record has been considered illegal. Sometimes an employer will try to avoid interviewing individuals with criminal records by excluding them from hiring ads. This is illegal.

Furthermore, Title VII, which prohibits employment discrimination based on race, protects potential or current employees who may be a part of a race with a higher percentage of criminal activity. Title VII applies to all businesses with more than 15 employees.

The Equal Employment Opportunity Commission (EEOC) occasionally issues guidance about enforcing the laws prohibiting employment discrimination against employees with criminal records. For example in 2012, the EEOC required companies to create procedures, showing criminal records weren’t used to discriminate based on race.

What Jobs Are Allowed to Discriminate for Criminal Record?

Despite not allowing private employers to discriminate against criminals, the law does outline certain jobs that prohibit hiring criminals. The reasoning for this is that these roles are often related to public safety. Someone with a history of crime will likely not protect the public well.

Jobs that usually prohibit the hiring of criminals are those in law enforcement, health care, education, or military. These jobs generally include a consideration of the applicant’s moral character as well. Also, jobs that require working in private residences, daycare, public transportation, and medical workers are all allowed to restrict the hiring of criminals.

Q&A: Employment Discrimination for Criminal Record

Questions about what’s allowed in employment and what is not allowed abound. Here we try to answer the questions that you may have about employment discrimination and criminal records.

How Does an Employer Find my Criminal Records?

You will know if your employer wants to access your records. The Fair Credit Reporting Act requires that employers give you notice when they want to check your credit report or criminal record. Furthermore, the employer cannot use your criminal record in a hiring decision. First, they must provide the correct authorization and a copy of the report with a summary of your rights.

Is it Illegal for my Employer to Ask about My Conviction Record in an Interview?

A hiring employer can ask about your conviction record, but they must be careful in how they ask. Moreover, you must be careful to answer truthfully and not add extra, not-requested information. Lying could cause you to be fired in the future.

Did Pennsylvania Remove the Past Criminal Questions from Job Applications?

The “Ban the Box” campaign swept through the United States, trying to push background checks later in the hiring process. After all, criminal activity can have a negative impact on a job searcher’s ability to receive a job offer. Over 150 counties and cities, including thirty states and the Federal government, have decided to leave out the questions about criminal convictions.

Pennsylvania does require some level of ban the box from the application process, but it doesn’t mandate the removal of conviction history questions. Studies are just beginning to determine if this will really help remove bias from the hiring process.

Pennsylvania law requires that you be informed if you were not offered a job because of your criminal record information. However, employers cannot consider conviction in a hiring decision unless the convictions relate directly to the job responsibilities.

What Laws Protect against Criminal Employment Discrimination?

As mentioned above, Title VII of the Civil Rights Act of 1964 helps to protect the rights of employees and job applicants. Another federal law that lays out protections for employees is the Fair Credit Reporting Act (FCRA).

The FCRA outlines what companies can and cannot do when running background checks on employees or job applicants. Arrest records that are older than seven years should not be included in the reports unless the job will pay more than $75k. However, convictions will always show on your record.

Before an employer does a background check, the FCRA requires that the employer do three thing. The employer must receive the applicant’s written consent, explain how the information will be used, and give a copy of the report to the applicant.

While the FCRA sets certain obligations on employers related to background checks, it doesn’t provide any help if an employer chooses not to hire your based on your record. The FCRA only deals with inaccurate reports.

If you want to seek legal action based on discrimination for your criminal record, Title VII is much more likely to offer you relief. Title VII laid out specific rules on how criminal records should be used in employment. When used incorrectly, two types of disparate treatment claims are possible.

Disparate Treatment: Different Standards Based on Race

When an employer implements different expectations for job applicants, such as excusing minor infractions by white applicants while not hiring African Americans for the same type of infraction, this is unfair treatment. Employers who only run a background check on minorities are allowing disparate treatment. The law demands that all job applicant be treated with equality.

Disparate Impact: Uniform Policy with Negative Effect on Certain Races

Employers may have a uniform policy that actually singles out certain races. This can have a negative impact on those applicants’ ability to be hired. This could become a disparate impact claim.

Employment law seeks to protect job applicants and employees from employment discrimination. Studies continue to show that discrimination in regards to criminal activity is often motivated by assumptions in place about a race. The law is clear that race discrimination is illegal.

If you suspect that you have faced racial discrimination due to an assumption of criminal record, you may have a case under the law.

Chat with an employment attorney: (412) 626-5626 or