Is It Illegal for an Employer to Discriminate Based on Criminal History?

As a general rule, asking applicants about a criminal history before making a conditional job offer is no longer legal. The federal Fair Chance to Compete for Jobs Act is similar to many state and local “ban the box” laws that make asking about a criminal history illegal in most cases. In addition, the Equal Employment Opportunity Commission (EEOC) has taken criminal history discrimination as a form of racial discrimination because of the disproportionate rate of arrests and convictions among such groups. 

When you get arrested or convicted of a crime, your future employment is probably not the most important thing you’re considering. However, in the future, it can create severe problems for you. Historically, many employers would simply not consider employing someone with an arrest or conviction in their past. 

As a result of this historical discrimination, many states and cities have recently enacted “ban the box” ordinances which forbid asking about arrests and convictions before extending a conditional offer of employment. 

Some such statutes prohibit any questions about criminal arrests or convictions unless they can be shown directly related to the job. Thus, for example, applicants for police positions or employment in banks or brokerage firms are prohibited by law from having criminal backgrounds. In these cases, employers who make an employment offer may condition that offer upon meeting the legal qualifications for the position. 

In California, the Fair Employment and House Act (FEHA) restricts certain employers from making hiring decisions based on an individual’s criminal history. This restriction includes any criminal history disclosed in a background check or employment application. Under FEHA, any California employer with at least five employees may not:

• Include conviction history questions on an application
• Inquire into a conviction history before making a conditional offer of employment
• Consider, distribute, or disseminate information about any of the following while conducting a criminal history background check
  • Arrest that did not result in a conviction subject to certain exceptions
  • Referral to or participation in a pretrial or post-trial diversion program
  • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated

Once the employer extends an offer and a criminal history is obtained, the FEHA further provides that an employer cannot deny an applicant a job solely or in part because of the conviction history unless and until the employer conducts an individualized assessment. This assessment must justify denying the job applicant the position by connecting relevant criminal history with the specific responsibilities of the particular position. The assessment must consider:

• Nature and gravity of the offense or conduct
• Time that has passed since the offense or completion of the sentence
• Nature of the job sought

If the employer finds after the assessment that the conduct is disqualifying, the employer must notify the applicant of the preliminary decision in writing. In doing so, the employer must:

• Provide written notice of the disqualifying conviction(s) underlying the decision to rescind the offer
• Include a copy of the conviction history report if any
• Inform the applicant that they have the right to appeal within five business days and may challenge the accuracy of the record or evidence of rehabilitation or mitigation

During these five days, the employer may not make any final employment decisions if the applicant timely notifies the employer that they intend to dispute the determination. The employer must provide an additional five days if requested and consider any additional evidence submitted by the applicant. 

If the employer determines to reject the applicant based on the conviction history, the employer must notify the applicant in writing and include instructions on how to challenge the decision and file a complaint with the state. For these purposes, an “applicant” includes an individual who begins work before the employer makes a final decision. 

If you have questions about your employment rights, seek help from Minnis & Smallets today.