Can Criminal History Discrimination Occur in the Workplace?

It’s no secret that employers are increasingly including criminal background checks in the hiring process and then refusing to consider applicants with any type of criminal record. This is true even when that criminal record may not be relevant to the position for which the person is applying. This type of discrimination is regulated by certain federal agencies, such as the U.S. Department of Housing and Urban Development (HUD), which enforces federal housing discrimination law. But, what about in the employment context?

No Federal Law Prohibiting Criminal History Discrimination In Employment

There is no federal law that expressly prohibits discrimination in the workplace that is based on criminal history. However, the EEOC has recognized the potential for a disparate treatment claim involving job applicants of a certain race or other protected category. In other words, when an employer using criminal records as a way to exclude people of a certain race.

EEOC’s Position In Criminal Record Discrimination

According to the EEOC, an “arrest record standing alone may not be used by an employer to take a negative employment action,” since it is not always evidence of criminal activity. This is the same position HUD has taken when it comes to housing discrimination indicating that an arrest record alone cannot justify discriminatory treatment.

What Constitutes A Criminal Record?

When these issues arise, it is important to distinguish between an arrest, a criminal charge, and a conviction. Because of the vast difference between these, the mere existence of an arrest record does not establish that a person committed a crime or was engaged in criminal activity. For example, being charged with a crime does not equal a conviction. In some cases, a person may still be able to prove innocence even after a conviction. Nonetheless, employers often do not make a distinction between an arrest, a criminal charge, and a conviction, but instead, takes any type of criminal record as a reason to deny employment.

Some Local Laws Against Employment Discrimination Based On A Criminal Record Exist

There are some cities, such as New York, that have passed laws which prohibit employers from even asking about criminal history during the hiring process. You may have heard of these laws referred to as “Ban the Box” laws, referring to the check box on most job applications asking whether an applicant has ever been arrested, charged, or convicted of a crime.

New York City, for instance, has enacted the Fair Chance Act which became effective in October of 2015. That particular law prohibits employers from asking about an applicant’s criminal history until a conditional offer of employment has actually been made to that applicant. At that point, the potential employer is required to notify that applicant if they decide not to hire them based on the applicant’s criminal history. The applicant is then allowed an opportunity to respond regarding the alleged criminal history. Alabama does not have a similar law in place at this time.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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