Federal Agency Expands Protections Against Criminal History Discrimination

ArrestCriminal background checks have become increasingly common in the hiring process in recent years. Many employers refuse to consider an applicant with a criminal history, even when it has little to no relation to the job in question. This creates a vast population of people who are essentially unemployable, which is bad not only for those people but for everyone. A growing body of law at the city, state, and federal levels places limits on how employers may use criminal history in hiring decisions. Still, there is much progress to be made. The U.S. Department of Housing and Urban Development (HUD), which deals with federal housing discrimination law, recently issued new guidelines regarding the use of arrest records by landlords. While these guidelines do not directly affect employment, they are an important step forward on the larger issue.

When discussing how criminal history plays a role in employment discrimination, it is important to understand the difference between an arrest, a charge, and a conviction. An arrest record does not, by itself, indicate that a person committed a crime, nor should it necessarily serve as evidence of criminal activity. Similarly, a charge without a conviction should not imply criminal activity. A conviction means that either a person pleaded guilty to a criminal charge or was convicted after a trial, at which the state had to prove guilt beyond a reasonable doubt. A person may still be able to prove actual innocence, even after a conviction. Employers and others often fail to make a meaningful distinction between an arrest, a charge, and a conviction, so the law attempts to make the difference clear.

Cities across the country, including New York, have enacted laws restricting employers’ ability to inquire about criminal history during the initial stages of the job application process. These laws are commonly known as “Ban the Box” (BTB) laws, in reference to the check box on a typical job application that asks whether an applicant has ever been arrested, charged with, or convicted of a crime. New York City’s Fair Chance Act, which took effect in October 2015, prohibits employers from asking about criminal history until they have extended a conditional offer of employment. At that point, they must notify an applicant if they make an adverse decision based on the applicant’s criminal history, and they must give the applicant an opportunity to respond.

Federal law does not expressly protect against discrimination based on criminal history, although the Equal Employment Opportunity Commission (EEOC) has noted that a consideration of criminal history can violate Title VII of the Civil Rights Act of 1964 if it results in disparate treatment of employees or job applicants based on race or another protected category. The Fair Credit Reporting Act regulates the release of criminal history and other information by credit reporting agencies, and it provides individuals with recourse for inaccurate information.

The EEOC maintains that an “arrest record standing alone may not be used by an employer to take a negative employment action,” since it is not necessarily evidence of criminal activity. HUD took a further step in advancing this view in a guidance letter issued in early April 2016, noting that access to housing after release from incarceration “is critical to [people’s] successful reentry to society.” The guidance letter states that an arrest record, by itself, cannot justify discriminatory treatment.

The criminal conviction discrimination attorneys at Phillips & Associates advocate for job seekers, employees, and former employees in the New York City area, helping them assert their rights in claims under federal, state, and city employment laws. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

State Supreme Court Strikes Down Law that Categorically Bans People with Criminal Convictions from Employment, New York Employment Attorney Blog, April 20, 2016

New York City’s “Ban the Box” Law Could Put Employers in an Unusual Position, New York Employment Attorney Blog, March 3, 2016

Job Applicant Claims Inaccurate Criminal History Resulted in Lost Job Opportunity, Violated Federal Law, New York Employment Attorney Blog, December 17, 2015

Photo credit: Abu badali, based on public domain Aiga’s icons. [CC BY-SA 2.5], via Wikimedia Commons.

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