Criminal Records / Arrests – Failure to Hire

Failure to Hire Due to Criminal Record / Arrest

Robert Maizel is an employment discrimination lawyer who handles cases that involve discrimination because of criminal records or arrests.

When you apply for a job, a prospective employer has the right to request and examine an applicant’s arrest and conviction records. Because of this, many individuals with a criminal record—even with minor charges—are discouraged from applying for certain jobs. Employers cannot use criminal records in a way that discriminates against the applicant. 

This is a hotbed topic in today’s employment field.

The EEOC’s Guidelines on Criminal Records

The primary federal law providing protection against employment discrimination is Title VII of the1964 Civil Rights Act.  When looking at Title VII and filing with the Equal Employment Opportunity Commission (EEOC) for failure to hire because of a criminal record, the claim must involve discrimination based upon a protected class; race, sex, gender, religion, or national origin. The EEOC is responsible for the administration of claims filed by employees, against employers, for alleged violations of Title VII and for improper use of criminal records if they involve a protected class.  The EEOC website outlines how Title VII interacts with failure to hire because of a Criminal History.

On the issue of an applicant’s criminal history, the EEOC advises that employers consider certain factors before deciding whether to offer employment to an applicant. These factors include:

  • The seriousness of the criminal offense,
  • How long ago the event occurred,and
  • The type of job for which the applicant is applying.

In other words, an employer should not summarily deny employment simply based on the existence of a criminal record.

Discrimination Based on Prior Convictions in Pennsylvania

Anti-discrimination laws are not all federally based. Pennsylvania has laws regarding discrimination as it relates hiring practices that involve limitations based on criminal convictions.  In Pennsylvania an employer is allowed to use a criminal conviction to deny employment, but only if the conviction in question bears a rational relationship to the duties and responsibilities of the position.

In Pennsylvania, the use of criminal background checks in the hiring process is governed by 18 Pa.C.S. §9125, part of the Criminal History Record Information Act, 18 Pa.C.S. $9101-9181.  Convictions may only be considered as they relate to the suitability of the applicant to the position they seek. 

The Act further requires that if an employer’s decision not to hire an applicant is based in whole or in part on criminal history record information, then the employer must so notify the applicant in writing.  Employers must be very cautious in basing their hiring decisions on criminal convictions because a rejected applicant can sue the prospective employer for their basing the job rejection solely on the conviction or arrest, or if the conviction is unrelated to the job.  In this case, the prospective employee can be entitled to actual and real damages, as well as punitive damages (up to $10,000.00) and attorney’s fees.

Employers should not comment on the strength of the candidate before they perform the criminal background check.  In many cases, the prospective employee will bring an action against the employer because they were told they were a strong candidate, and later turned down for the job after a criminal background check.  

The Criminal History Record Information Act and cases decided leave open some troubling issues, such as convictions for violent crimes. An employer might conclude that an assault conviction is unrelated to the applicant’s suitability for an entry-level job, but how can an employer be sure that such a person does not pose a threat to other employees, vendors or customers?  These issues are not clear cut and are decided on a case by case basis.

The City of Philadelphia Block the Box Law 

In the City of Philadelphia it is illegal for the employer to ask about your criminal background during the interview process.  The City of Philadelphia Block the Box Law permits the prospective employer to run a candidate’s criminal record ONLY AFTER an offer of employment has been extended with a condition that it is based on the results of the criminal check.  The prospective employee can be rejected based on their criminal history only if the applicant possess a threat to other employees or customers.  If your background check reveals a conviction, the employer must consider: 

  • The type of offense and the time that has passed since it occurred.
  • Its connection to the job you are applying for; and 

The employer must provide a reason for the rejection to the prospective employee in writing with a copy of the background report used to make the decision.  

How Do I Fill out My Application If I Have a Prior Criminal Record?

The biggest mistake many applicants make is failing to answer the question about criminal history. Unfortunately, you cannot always avoid the issue, especially when employers almost routinely require background checks of all potential employees. The truth is, refusing to answer questions about your criminal record can cause a bigger problem than your actual record. An employer would likely be justified in not hiring you, or rescinding a job offer, because you lied “by omission.” The best advice is to simply tell the truth. That way, you prove yourself trustworthy.

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Robert Maizel, Esquire


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