Protections Against Discrimination for Criminal Conviction

Moving forward with life after a criminal conviction can be a challenge. You’ve paid your debt to society and completed the punishment that was ruled appropriate for your criminal offense. However, having a criminal record can make housing, employment, and other life necessities challenging.

While you may have prior convictions, you also have rights. Understanding your rights and how to identify discrimination based on prior conviction can help you advocate for yourself and rebuild your life. Reach out to a discrimination lawyer for legal help.

Understanding Discrimination Based on Criminal Conviction

Federal anti-discrimination laws do not specifically include criminal convictions as a protected class. However, legal protections may apply if the use of criminal records disproportionately impacts members of a protected class. On the state and local level, some laws specifically state that individuals with a criminal history are protected from discrimination.

In general, it’s allowed to consider criminal records in employment, housing, education, financial services, or occupational licensing when each individual is given an individualized assessment. However, it’s unacceptable to create a blanket policy that disqualifies or bans all applicants with convictions. Arrests that do not lead to conviction cannot be considered. Expunged or sealed records cannot be considered.

Historically, criminal conviction records have been used to discriminate against certain races and ethnicities. Higher arrest and conviction rates among Black and Latino individuals have led to a greater likelihood of disparate impact from blanket bans. Individuals from lower-income communities lack the resources needed to pursue expungement or record sealing. They also lack the financial resources to contest an unfair denial.

Federal Laws and Protections

While federal anti-discrimination laws do not explicitly prohibit criminal history discrimination, they can provide a foundation of protection.

For example, the U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964. The EEOC interprets Title VII to prohibit employment practices that disproportionately exclude people of a particular race, national origin, or other protected class. When an employer uses criminal records to do this, they violate federal law prohibiting discrimination. For an employer to defend its actions, it must show that its use of background checks and criminal history consideration is job-related and a business necessity.

Similar to the Civil Rights Act, the Fair Housing Act (FHA) doesn’t explicitly prohibit criminal record discrimination in housing. However, it does prohibit housing discrimination based on race, color, religion, national origin, sex, familial status, or disability. A housing provider cannot use a criminal record to disproportionally impact a protected group.

The Fair Credit Reporting Act (FCRA) governs how employers obtain and use consumer reports, including background checks from a third-party reporting agency. Employers must obtain written consent before conducting a background check and provide an adverse action notice (including a copy of the report and a summary of rights) before taking adverse action based on the report.

State and Local Laws

Several states have enacted laws that expand federal anti-discrimination protection to include individuals with felony or misdemeanor convictions.

For example, New York is well known for Article 23-A, which prohibits employers from rejecting a candidate based solely on the applicant’s criminal history unless the offense is directly related to the job or would pose an unreasonable risk.

California has the Fair Chance Act that applies to private employers with five or more employees. Employers cannot ask about an applicant’s conviction history until after they have extended a conditional job offer. Several other states have strong laws to protect against criminal conviction discrimination.

Beyond state-level protections, several local governments have adopted local ordinances that impose even stricter requirements on employers. These local laws create multiple layers of protection for employees working within the city limits.

Ban the Box and Fair Chance Initiatives

Over 35 states have adopted Ban the Box legislation. This movement has sought to remove the job application checkbox that asks about criminal history information. The goal is to delay criminal history inquiries until later in the hiring process. The purpose is to reduce the number of automatic rejections job applicants receive based on a criminal record. This should increase employment opportunities for people with past convictions, reducing recidivism.

Some states impose Ban the Box laws only on public employers, while a minority of states include public and private employers. While all Ban the Box laws have the same generalized purpose, the terms can vary in scope, timing of the criminal record inquiry, procedural requirements, and covered offenses.

The Fair Chance to Compete Act is the federal “Ban the Box” law that applies to federal employment and contractors working with the federal government. It prohibits inquiries into criminal history until after a conditional job offer is extended for federal positions.

The Workforce Innovation and Opportunity Act (WIOA) is a federal law intended to improve employment opportunities for people with barriers to employment. This includes individuals with criminal records. It encourages the use of American Job Centers and related workforce programs. It also prohibits outright exclusion from federally funded workforce programs based solely on criminal record.

How To Assert Your Rights

Before someone can assert their rights, they need to know the signs that their rights are being violated. While there are indicators of potential discrimination, each situation needs to be given an individual assessment.

Discrimination in the Hiring Process

The hiring process can vary based on the type of position and industry. Some hiring decisions are based on job-related duties or regulations. Some positions require employers to ask about conviction history because the individual hired cannot have a history of felony convictions.

Common examples of these types of positions are those that require security clearances, are in a financial role, or require a specific type of license. The company doesn’t want to extend an offer of employment only to find out the individual cannot obtain the required security clearance or license.

Signs of Potential Discrimination

If one of these situations does not apply, and having a clean criminal record doesn’t directly relate to the position, look for signs indicating potential discrimination. The employer could ask about criminal history on initial employment applications. Doing so violates Ban the Box, if applicable.

Another sign is an employer asking for more information about expunged, sealed, or juvenile records. Another potentially problematic action is an employer automatically rejecting applicants solely based on having any criminal background. Instead, employers should give each applicant an individual assessment where they consider the seriousness of the offense, the amount of time passed, evidence of rehabilitation, and job relevance.

An employer could violate procedural rights, such as failing to provide an adverse action notice under the FCRA or allowing the applicant to explain their criminal history.

Steps To Take if You Experience Discrimination

If an individual believes they have experienced discrimination based on their criminal history, they should begin documenting everything. Keep a record of all interactions and communications with anyone who works for or represents the employer or housing provider. Keep detailed notes that include dates, times, and locations of interactions.

Take note of the name, title, and contact information of the individuals you communicate with. Keep an original of all documents provided by the employer or housing provider. This will likely include the job or housing application, rejection letters, emails, and background checks.

The next step is to identify the appropriate agency to file a complaint. Employment discrimination victims would seek remedy with the EEOC. A local human rights or employment agency may also be able to assist. In comparison, victims of housing discrimination would begin seeking remedy with HUD or a local fair housing agency.

File your complaint within the required deadline and submit all of your evidence. Cooperate with the agency’s investigator who is assigned to your complaint. Track the status of your complaint and request a copy of the agency’s findings or determination. If you are not happy with the outcome of the investigation, you may be able to appeal or file a civil lawsuit.

Victims of discrimination who have a successful claim have several remedies available to them. The employer or housing provider could be ordered by the court to reconsider the individual’s application. They could be awarded back pay as lost wages due to an improper job opportunity denial. Compensatory damages could cover out-of-pocket expenses and emotional distress. In especially egregious cases, the court may award punitive damages. If appropriate, the court could order injunctive relief that orders the employer or housing provider to change their policies or practices.

Seeking Legal Assistance and Support

Moving forward and rebuilding your life is challenging when you have a criminal conviction on your background report. If you feel that you’ve experienced discrimination because of your criminal conviction, speaking to a lawyer can guide you. A lawyer can explain the applicable law and help you advocate for your rights.

Find a knowledgeable discrimination lawyer in the Super Lawyers directory to discuss your potential case.