What laws protect applicants from discrimination based on their criminal record?

The laws that give applicants with records some protection are (1) the federal civil rights law called “Title VII,” (2) the federal Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Title VII,[1974] and (3) California state laws that are very similar to these federal laws.[1975] Learn more about these laws in the Appendix J, PG. 635 and Appendix K, PG. 636.

Under these civil rights laws, an employer CANNOT have a “blanket ban” policy that permanently excludes anyone and everyone with a criminal record. Instead, the employer’s hiring policy should only exclude convictions that are “job related for the position” and “consistent with business necessity.” This means that the employer should look at a number of factors when considering the convictions, such as:

    The nature and seriousness of the conviction, AND
    How much time has passed since the conviction, conduct, or completion of the sentence, AND
    The nature of the job you’re seeking—including the specific duties and responsibilities of the job.[1976]

For a more detailed description of how employers should look at these factors, keep reading the rules on the next page.

KNOW YOUR RIGHTS:What is a protected class?

“Protected classes” are groups of people that have historically experienced discrimination, and therefore are specifically protected by civil rights and anti-discrimination laws—for example, African Americans, women, immigrants, LGBTQI individuals, and people with disabilities. The specific characteristic that makes someone part of a protected class—for example, their race, sex, national origin, sexual orientation or gender identity, and/or disability status. Under the law, it is illegal to discriminate against someone based on a protected characteristic. However, it is generally NOT illegal to discriminate against someone for some other reason that is NOT protected (for example, the color of their shirt).IMPORTANT: Having a criminal record is NOT considered a protected class under the law. However, discriminating against people with criminal records can still be illegal in many situations because it has a much greater effect on Blacks and Latinos. Also, it is illegal for an employer to treat people with similar records in a different manner, based on any protected characteristics. For more information about different kinds of discrimination based on criminal record, see PG. 592 below.What groups are “protected classes” under the law? Under federal law, it is illegal to discriminate against someone for any of the following reasons:

    RaceColorNational origin
    ReligionAge (40 and over)Sex
    PregnancyDisabilityGenetic information

Under California law, it is illegal to discriminate against someone for any of the following reasons:

    RaceColorNational origin or ancestry*Religion
    SexPregnancyFamily or marital status*Sexual orientation* Gender identity*
    Disability or medical condition*Genetic informationMilitary or veteran status*Age (40 and over)

In other words, California law protects all of the same characteristics as federal law, plus additional characteristics (marked with a *star*) that are NOT protected by federal law.

  1. 1974

    See EEOC Guidance. See also EEOC, Questions and Answers About Race and Color Discrimination in Employment, (EEOC Guidance May 16, 2006).

  2. 1975

    See Cal. Gov’t Code § 12900 et seq.

  3. 1976

    EEOC Enforcement Guidance at § V(B)(6)-(8). The employer should develop a targeted screening process that considers at least the following 3 factors: the nature and seriousness of the crime; time elapsed since the crime; and the nature of the job sought (nature of the duties and essential functions, circumstances under which the job is performed such as level of supervision and amount of authority, and the environment in which the job is performed considering location and context).