Criminal Conviction Discrimination

Employment Discrimination on the Basis of Criminal Convictions

It can be difficult for those with a criminal record of any kind to find employment. Many employers believe that once a person has been convicted of a crime, that person will always be unreliable. Even employers in low-risk industries tend not to hire applicants with criminal records. This type of discrimination fails to account for the many people who learn from their mistakes. To varying degrees, employers may legally consider a worker’s criminal history as part of the application process. There are no federal laws that explicitly prohibit employment discrimination based on a criminal record. However, there are some limits on how much a criminal record may be considered.

A number of states have enacted laws that prohibit arbitrary bans on employment applicants with criminal convictions. These laws may prohibit a public employer from denying employment to an applicant solely on the basis of a prior conviction, or prohibit a public employer from denying employment where there is no “reasonable relationship” between the conviction and the employment sought.  A few states, such as New York, prohibit all employers from denying employment based on a criminal record unless there is a direct relationship between the offense and the job, or unless hiring the person would create an unreasonable risk to property or safety.

Criminal Conviction Discrimination Under Title VII

If you work in a state where employers may not discriminate on the basis of criminal convictions, you may have access to remedies in state court. Various factors may assist or harm your case in state court, including the length of time that has elapsed since the conviction, the severity of the offense, and the state’s public policy interests in offering employment to those with prior convictions. For example, if you were convicted of vandalism at age 18 and are now 35 with no further offenses on your record, you may have a basis to bring a lawsuit for discrimination against a New York employer that asks you multiple questions about your conviction and then does not hire you,.

If you do not live in a state with protection for those with criminal records, you may have a claim under federal law, but only if you also belong to a protected class as a member of a racial minority. The U.S. Equal Employment Opportunity Commission (EEOC) has issued an Enforcement Guidance for Title VII of the Civil Rights Act of 1964 that updates its policies regarding criminal conviction discrimination.

The EEOC’s new Enforcement Guidance is based on the reasoning that criminal record exclusions have disparate impacts based on race and national origin. Specifically, African Americans make up only 13% of the U.S. population. Yet the FBI has found that more black people were arrested nationwide in 2009 than white people and the imprisonment rate for black men is nearly seven times higher than white men and almost three times higher than Latino men. This means that employers’ decisions to refuse to hire on the basis of a criminal record disproportionately affects black people and Latinos.

Among other things, the EEOC’s Enforcement Guidance explains differences between how an employer should regard an arrest and how it should view a conviction. An exclusion based on an arrest is not job-related or consistent with business necessity. However, employers may make employment decisions based on conduct underlying the arrest if it makes the individual unfit for the specific position.

For example, under the Enforcement Guidance, a man arrested for selling a small amount of marijuana as a teenager, but denied a job as an accountant, may have a viable claim under Title VII. On the other hand, a man arrested of violent bank robbery who is denied a job as a security guard at a financial institution may not have a claim under Title VII. This is because the violent theft underlying the arrest would be reasonably connected to the prospective employment.

A conviction, however, is usually evidence that a person did engage in particular conduct that makes him or her unfit. For example, a daycare may deny employment to a woman convicted of drug trafficking based on her criminal record.

The EEOC’s Enforcement Guidance also explains that employers may violate Title VII if they treat criminal history information differently for different job applicants or employees based on national origin or race. Suppose that several job candidates apply to work as security guards at a sports stadium. All have criminal records involving misdemeanor convictions. However, if the stadium hires all the white candidates and does not hire any of the black candidates, it may be liable for its disparate treatment.

An employer can also violate Title VII with neutral policies that have disparate impacts on individuals protected by the law, unless the policy is job-related and consistent with business necessity. The EEOC has explained that employers can successfully defend themselves on the grounds that their policies are job-related and consistent with business necessity in at least two circumstances. The first is if an employer validates its exclusion in light of the Uniform Guidelines on Employee Selection Procedures. The second is if an employer creates a “targeted screen” that considers the nature of the crime, the nature of the job, and the time that has elapsed since the alleged criminal conduct. This provides an opportunity to determine if the policy as applied is job-related and consistent with business necessity.