The Unfair Roadblock: As discussed in several other toolkits, including Standards for Hiring People with Criminal Records, individuals with criminal records often experience greater difficulty in obtaining employment because many states do not have laws that regulate how employers should evaluate a criminal record when considering applicants. In states lacking such regulation, employers can deny jobs to applicants solely because of their criminal record, even if the record consists only of arrests that did not lead to conviction or convictions that are old, minor, and/or unrelated to the job. In those states, the only protection against employment discrimination towards individuals with a criminal history is federal law: Title VII of the Civil Rights Act of 1964.

How to Remove the Roadblock: In addition to urging states to pass laws forbidding blanket refusal to hire anyone with a criminal record no matter how unrelated to the job or the qualifications and background of the individual, advocates interested in combating employment and other forms of discrimination against persons with criminal records should urge enforcement of Title VII of the Civil Rights Act of 1964 and, if one exists, similar state laws. Title VII can be used to challenge denials of employment (or other opportunities) based on arrests that never resulted in conviction, or convictions unrelated to the nature of employment.

This toolkit provides background information for advocates regarding the use of Title VII to promote individualized employment decisions and prevent discrimination.

HOW TITLE VII PROHIBITS EMPLOYMENT DISCRIMINATION BASED ON CRIMINAL RECORD

Title VII of the Civil Rights Act of 1964 prohibits private employers and state and local governments from discriminating in employment based upon race, color, gender, national origin, or religion. The Equal Employment Opportunity Commission (EEOC) has ruled that employment policies that exclude individuals based upon their criminal history may violate the Civil Rights Act because such policies disproportionately impact minorities, who are arrested and convicted at a significantly higher rate than their percentage in the population.

Employers are prohibited from excluding individuals based upon record of arrest(s) that never led to conviction absent a business justification. A “business justification” is demonstrated by showing that:

• the applicant engaged in the conduct for which s/he was arrested; and
  
  
• the conduct is both job-related and fairly recent.

EEOC guidelines require employers to provide applicants with an opportunity to explain their arrest records before they are disqualified from employment.

Similarly, the EEOC has stated that an employer may only exclude a person because of a criminal conviction if business necessity exists. To establish “business necessity,” the employer must show that three factors were taken into full consideration in the hiring decision:

• the nature and gravity of the offense(s);
  
  
• the time that has elapsed since the conviction and/or completion of the sentence; and
  
  
• the nature of the job held or sought.

For example, “business necessity” exists where the applicant has a fairly recent conviction for a serious offense that is job-related.

While Title VII provides helpful guidance to employers, it is a limited remedy because it is only available to racial minorities and is very difficult to enforce.

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HOW SOME STATES PROHIBIT EMPLOYMENT DISCRIMINATION BASED ON A CRIMINAL RECORD

Five states forbid private employers from having flat bans against hiring persons with a conviction record. For example, New York law prohibits public and private employers in New York from having a blanket policy of denying former offenders employment. The law requires employers to determine if: 1) there is a direct relationship between the conviction history and the specific duties required to fulfill the job requirements, and 2) whether granting the job or license would pose an unreasonable risk to people or to property. Similarly, Kansas requires that the conviction reasonably bear on the applicant’s trustworthiness or the safety or well being of the employer’s employees or customers to justify excluding an applicant on the basis of a criminal conviction. Hawaii allows employers to consider only rationally-related criminal convictions that occurred within the past ten years and only after a conditional offer of employment has been made. In Wisconsin, private employers may only refuse to employ individuals who are not bondable as a result of their criminal convictions and those convicted of felony and misdemeanor offenses substantially related to the position license sought.

Fourteen states have legal standards governing public employers’ consideration of applicants’ criminal records. They are: Arizona, Colorado, Connecticut, Florida, Hawaii, Kansas, Kentucky, Louisiana, Minnesota, New Mexico, New York, Pennsylvania, Washington, and Wisconsin. These state statutes similarly require that public employers make individualized determinations about job applicants. To see one of these state’s statute, click on the particular state: Hawaii, Kansas, New York, Pennsylvania, Wisconsin.

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WHAT YOU CAN DO

Advocates interested in ensuring the fair use of conviction information by employers should work with attorneys in their area who have experience with discrimination claims. Working together, they can determine the best strategy for enforcing Title VII provisions and push for more stringent enforcement of Title VII provisions and any relevant state laws. Advocates can also get in touch with their local EEOC offices to see how they have been enforcing Title VII complaints. Local human rights agencies may also have some helpful information

In states that have no laws prohibiting discrimination against individuals with criminal records, advocates should encourage legislatures to enact policies that require individualized assessments of ob applicanst and allow rehabilitated persons to obtain jobs when their arrest and convictions present no threat and are unrelated to the employment sought. See the Legal Action Center’s toolkit: Standards for Hiring People with Criminal Records.

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