One of the toughest challenges after obtaining an arrest or conviction record is finding employment. Often, employers are reluctant to hire applicants with arrest or conviction records and may be more inclined to deny such applicants their basic rights to fairness in the employment process.

However, treating workers and applicants with criminal history can, in some instances, be illegal. It’s important for employees and applicants with a history of arrest or conviction to know their rights and be prepared to consult an employment rights attorney when and if these rights are violated.

What is Criminal Record Exclusion?

Criminal record exclusion describes the situation when an employee or applicant is denied a job opportunity based on previous criminal history as outlined in an arrest or conviction record.

Criminal record exclusion is a looming issue in America for a number of reasons. First, the advent and onslaught of technological convenience has made it much easier than ever before for employers to obtain the criminal record history of any applicant or employee.

Another factor is the increase in criminal records among working-aged Americans. This often means that certain communities who have statistically been more heavily burdened with arrest and conviction records, especially the African American and Hispanic community, are subject to criminal record exclusion in employment on a wide scale.

It is not the case that obtaining arrest and criminal record history or criminal records exclusion in and of itself is illegal. However, when the information from an arrest or conviction record is used in a discriminatory way to make unfair employment decisions, the law steps in to provide remedies and protection for aggrieved employees and job applicants.

Two Ways Using Arrest and Conviction Records Could Be Illegal

Title VII of the 1964 Civil Rights Act makes it illegal for employers to engage in discriminatory behavior based on race, color, national origin, religion, sex, age or disability in all terms and conditions of employment. The prohibition on discrimination in the workplace extends to all employment practices, including hiring and job advertisement.

Thus, under Title VII, it is illegal for employers to use criminal record exclusion in a way that treats employees and job applicants with the same criminal histories differently. For instance, if a Hispanic worker with a felony conviction and an African American worker, also with a felony conviction, both applied for the same job with the same qualifications, but the employer chose to hire the Hispanic applicant because of unconscious bias against African Americans, there could be a violation of Title VII.

Another violation of Title VII concerning arrest and conviction records is called disparate impact discrimination. Though this type of Title VII violation has long been a part of the law, Congress included the current disparate impact analysis when it amended the Civil Rights Act in 1991.

The basic disparate impact analysis concerning arrest and conviction records goes like this. At times, an employer’s use of criminal records exclusion operates to disproportionately exclude job applicants and employees of a particular race or national origin. When this is the case, the employer is obligated under Title VII to provide reasons that the exclusion is justified. Those reasons must be “job related and consistent with business necessity.”

If the employer is unable to show that the reasons for criminal records exclusion are job related and consistent with business necessity, the company could be held liable for disparate impact discrimination.

The EEOC Stance on Arrest and Conviction Records

The EEOC has attempted to ensure that employers stay in compliance with the dictates of Title VII by providing certain guidelines. The latest set of guidelines, released in 2012, give clarity to the issue of illegal arrest and conviction records.

However, this isn’t the first time the EEOC has addressed this issue. Arrest and conviction records exclusion has come up in a number of ways involving unfair discrimination in the workplace. Thus the EEOC has identified it in earlier documents a well as policy manuals as a significant barrier the agency would like to address concerning race and color discrimination.

The enforcement guidelines themselves emphasize that there is no Title VII prohibition against having a criminal record or against an employer’s use of criminal record history. However, an employee who believes he or she was adversely affected by criminal record exclusion could bring a claim under Title VII if that exclusion was based on race, color, national origin, age, sex, religion or disability – the protected categories of Title VII.

The EEOC has a keen interest in providing policy and guidelines on the subject since it is the central enforcer of Title VII of the Civil Rights Act.

The ‘Less Discriminatory Alternatives’ Option

Even if an employer is able to show in a criminal record exclusion case that the reason for the exclusion was job related and consistent with business necessity, an aggrieved employee could still prevail. In order to do so, he or she would have to successfully argue that there were less discriminatory alternatives to the employment practice the employer chose, but that the employer refused apply those alternatives.

For example, in the earlier hypothetical in which the employer excluded the African American worker with the criminal record, the employer might have offered that the actual reason for exclusion was due to the fact that the desired position involved a small degree of money handling. In this case, the employee could have argued that there were less discriminatory actions than exclusion which the employer could have and should have taken such as allowing the worker to fill the position without handling money.

Arrest and Conviction Records in Employment

The short answer to the question of whether an arrest or conviction record can legally be used against an employee or job applicant is yes and no. An employer may legally obtain and use criminal record history as long as the use is job related and consistent with business necessity. However, when the use of arrest and conviction records becomes discriminatory in nature, an employer could be held liable for violation of Title VII. If you have questions or concerns about the effects of an arrest and conviction record on your chances of obtaining employment or other job opportunities, contact an employment rights attorney today.