Can an Employer Discriminated Based on Criminal Record?

Although federal law doesn't generally prohibit employers from using criminal records as a basis for employment decisions, some states protect employees from certain uses of their criminal records.

Currently, 15 states have passed "ban-the-box" laws that prohibit private employers from asking criminal history questions on job applications. Those states include:

• California
• Colorado
• Connecticut
• Hawaii
• Illinois
• Maine
• Maryland
• Massachusetts
• Minnesota
• New Jersey
• New Mexico
• Oregon
• Rhode Island
• Vermont, and
• Washington.

Most of these laws allow employers to ask about criminal history or conduct a background check only once a conditional job offer has been made.

And, if an employer's policy of disqualifying applicants or employees with a criminal record disproportionately affects members of a protected group, that employer could face a discrimination charge.

Can an Employer Deny Employment Based on Criminal History?

Many states specifically bar employers from getting records of arrests that did not lead to convictions or from asking applicants about such arrests.

A number of states also prohibit employers from asking about criminal records that have been sealed or expunged, and allow employees to treat these convictions as though they had not occurred (for example, if an employment application asks the employee about past convictions).

Some states allow employers to check or ask about convictions only if they bear a rational relationship to the job in question; an employer who made job decisions based on an unrelated conviction might violate the law.

Special Rules for Certain Jobs

The rules may differ for employees who will work with particularly vulnerable populations, such as children, elders, and adults who have disabilities. Many states allow or require employers to check criminal records for these employees, and to refuse to hire employees with certain types of prior convictions.

The same may be true for jobs that carry a higher degree of risk. For example, if an employee will enter people's homes (as a building superintendent, for example) or carry a weapon (as a security guard, for instance), state law may allow or require employers to check for criminal records.

Some states also give applicants the right to be notified if their application is denied based on their criminal record.

Is Excluding Job Applicants With Criminal Records Discriminatory?

The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces federal laws prohibiting discrimination, has said that an employer's blanket policy of excluding all applicants who have a criminal record could result in discrimination against African Americans and Latinos.

If such an employer policy has a disproportionately negative effect (a "disparate impact") on a protected group, the employer must show that the policy is job-related and consistent with business necessity. The employer generally must show that it considered:

• the nature and seriousness of the offense
• how much time has passed since the conviction or since the sentence was served, and
• the nature of the job for which the person applied.

If the applicant's conduct is particularly egregious or the crime is related to the job sought, the EEOC has said that the employer will generally be able to justify its decision.

An employer who bases its decision on an applicant's arrest record must also evaluate whether or not the applicant actually engaged in the charged conduct by, for example, giving the applicant an opportunity to explain what happened and making any other inquiries necessary to decide whether the applicant's explanation is credible.

Get Help From an Employment Lawyer

If you believe you have been denied a job unfairly based on your arrest or criminal record, you may want to talk to an experienced employment lawyer. A lawyer can explain the laws of your state, evaluate your situation, and help you decide how best to proceed.