Can an Employer Discriminate Based on Criminal History?


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When dealing with an arrest or a criminal conviction, a lot of things may be on your mind. Being able to find a job may not be the first thing that comes to mind, but it can be a serious problem. Many employers will not even consider someone with an arrest, let alone a conviction. But is it legal for an employer to discriminate based on one's criminal background?

Unfortunately for some job seekers, there is no federal law that prohibits discrimination based on a criminal record. However, in a somewhat ironic twist of fate, the U.S. Equal Employment Opportunity Commission (EEOC) and a few courts have found that using criminal convictions to deny employment may actually be a form of racial discrimination. The reasoning: some racial groups are arrested and convicted at disproportionately high rates, meaning that using criminal convictions to deny employment may actually just be a way of hiding racial discrimination.

Laws vary by jurisdiction, but employers may or may not be allowed to ask those applying for a job about their prior arrests or convictions. Some states only allow an employer to inquire about pending charges or past convictions if it is clear that the reply will only be relevant if it directly relates to the requirements of the job (e.g., obtaining a security clearance). As a general rule, an employer should only ask questions that are germane to the employment decision and not related to an applicant's personal life or membership in a protected class. Regardless of whether they can ask, the Internet has made mug shots and arrest records readily available with a simple search by the person's name, and background checks have been commercially available for years.

The EEOC has issued rules based on the disparate racial impact of criminal convictions on certain minorities stating that the use of arrest records as an absolute bar to employment is prohibited. Nevertheless, as noted, if the charges for which the applicant was arrested or convicted have a direct impact on the requirements of employment, these matters are permissible areas of inquiry. The EEOC has recommended that if a criminal background does come up at any point in the interview process or during employment, the employer should offer the applicant or employee an opportunity to explain, and make appropriate follow-up investigations to determine the veracity of the applicant or employee's statements.

If you believe that you or someone you know has wrongfully been denied employment or terminated due to an arrest or conviction, you should contact an attorney in your area that specializes in employment discrimination. They will be able to help you evaluate whether you may have an actionable complaint against the employer. Similarly, if you are an employer concerned about the limits of hiring and retention policies as pertains to criminal convictions, you should contact your corporate counsel to determine how best to minimize your exposure.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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