Can employers legally discriminate against me (such as not hiring or firing me) just because of my criminal record?

In a few situations, yes, but usually, NO. There are some laws that protect applicants from this type of employment discrimination. While employers can legally consider convictions that might impact your ability to do the duties of the job safely and adequately, there are civil rights laws that make it illegal for employers to treat you differently from other applicants or employees based on your race, sex, religion, national origin, and other protected characteristics (called “protected classes”).

While it is sometimes legal for an employer to not hire or fire you because of your criminal record, an employer’s hiring policy is more likely to be illegal if they have a complete ban (called a “blanket ban”) on job applicants with records. By law, the correct and legal practice is for the employer to consider the individual circumstances of the person applying for the job and the job itself.[1968]

In most cases, it is illegal for an employer to have a complete or “blanket” ban on applicants with criminal records because these kinds of bans cause greater harm to Black and Latino applicants (“protected classes”) under a federal civil rights law known as “Title VII” (this law is explained in more detail in Appendix J, PG. 635)[1969] Because Blacks and Latinos are incarcerated at dramatically higher rates than people of other races in the United States,[1970] excluding applicants with criminal records is likely to have a greater impact on these protected classes. By law then, a “blanket ban” is only legal if the employer can show that the ban is “job related” and “consistent with business necessity”—meaning that your conviction affects your ability to do specific duties of the job, and the ban is necessary for the good of the business.[1971]

If an employer chooses not to hire individuals based solely on their records, the employer must be able to show that that this is necessary to ensure safe and efficient job performance for the position in question.[1972] In doing so, and employer must show that they evaluated the applicant’s ability to perform the duties of the job and whether any past conviction(s) would pose an unreasonable risk of harm, based on the specific requirements and responsibilities of the position.[1973] Of course, these laws still give the employer a lot of discretion and room to discriminate, but they require the employer to do individualized analysis of each job applicant.

HELPFUL HINTWhat does a complete ban look like?

Sometimes the employer’s job posting, employment application, written policy, or some other part of the application process will show that the employer does not hire or employ people with criminal records. The policy may apply to all convictions, certain types of convictions (e.g., all felonies, or all theft offenses), and/or for convictions that occurred during a certain period of time (e.g., within the past 7 years). Or the policy may not be written down anywhere, but the employer says that they do not hire people with (certain) criminal records, or the employer’s hiring practices over time show that they always reject applicants with (certain) conviction records. These are all examples of complete bans—and are likely illegal because of their effect on minority, protected groups.

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IMPORTANT: IF YOU SEE SOMETHING, YOU CAN SAY SOMETHING!This section explains the civil rights laws that protect people with criminal records against discrimination by employers. However, there is often a gap between what the law says employers SHOULD do, and what employers ACTUALLY do. The courts are still figuring out how civil rights laws protect people with criminal records in different situations, because many of the cases on this subject are new. For this reason, it’s important that you talk to a lawyer and/or contact the appropriate government-run civil rights protection agency if you think an employer has violated your rights. You won’t just be protecting your own rights—you’ll be standing up for the rights of all people with criminal records to be free from employment discrimination!

  1. 1968

    EEOC Enforcement Guidance at § V(B)(9). Note: Employers are not necessarily required to give individualized consideration in all circumstances, but doing so will allow them to consider more complete information about the applicant, and will help them to show that the hiring policy—including the rejections of specific job applicants—is “job related and consistent with business necessity.” ↑

  2. 1969

    Green v. Missouri Pac. R.R., 523 F.2d 1290, 1298 (8th Cir. 1975). ↑

  3. 1970

    EEOC Enforcement Guidance at § V(A)(2). ↑

  4. 1971

    EEOC Enforcement Guidance at § V(B); see, e.g., El v. Se. Penn. Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007); Green v. Missouri Pac. R.R., 523 F.2d 1290, 1295-99 (8th Cir. 1975). ↑

  5. 1972

    Dothard v. Rawlinson, 433 U.S. 321, 331 n.14 (1977). ↑

  6. 1973

    El v. Se. Penn. Transp. Auth. (SEPTA), 479 F.3d 232, 244-48 (3d Cir. 2007). ↑