Laws Governing Criminal Record Inquiries in Employment
Law Center staff attorney Benjamin Geffen published a memorandum as part of our Fair Employment Opportunities Project.
DATE: JULY 25, 2014
RE: LAWS GOVERNING CRIMINAL RECORD INQUIRIES IN EMPLOYMENT
This memorandum provides a brief overview of key federal, state, and local laws protecting the rights of job applicants with criminal records. It is not meant to be exhaustive; rather, it is meant to alert the reader to the most important laws, as a starting point. Other valuable references include the EEOC’s 2012 Enforcement Guidance and a report of the Lawyers’ Committee for Civil Rights Under Law, Best Practice Standards: The Proper Use of Criminal Records in Hiring (2013).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., restricts employers’ use of criminal records in making employment decisions (see EEOC Enforcement Guidance). Because discrimination on the basis of criminal record has a disparate impact on racial minorities, it can be a form of race discrimination under Title VII. If an employer’s policies or practices disproportionately screen out members of Title VII-protected groups, then a presumption of discrimination is created. Once this presumption has been created, the burden shifts to the employer to show that the policies or practices are not discriminatory. In order to avoid Title VII liability, the employer must overcome the presumption of discrimination by demonstrating that the policies or practices are job-related and consistent with business necessity. (The employer may demonstrate this business necessity in a number of ways.) According to the EEOC Enforcement Guidance, an employer may use a conviction record to make an adverse employment decision only if the conviction makes the employee unsuitable for the position in question.
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., places additional restrictions on how employers may use criminal record information obtained through background checks to make employment decisions. FCRA governs employers’ use of “consumer reports,” including background checks and criminal records. Before an employer runs a background check on a current or potential employee, the employer must give written notice that this information might be used for employment decision and obtain the employee’s written consent. Before an employer takes an adverse employment action based on information found in a background check, the employer must provide the employee with notice that it is considering making the decision, a copy of the report it relied on to make the decision, and a description of the employee’s rights under FCRA to dispute the accuracy of the information in the report with the reporting agency. 15 U.S.C. § 1681b(b)(3). This requirement ensures that the employee has a timely opportunity to review the information in the report for accuracy. If an employer then takes an adverse action based on information found in a background check, the employer must provide notice to the employee. 15 U.S.C. § 1681m(a).
Criminal History Record Information Act
In Pennsylvania, the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§ 9101 et seq., further restricts how employers may consider criminal records in hiring. This law mandates that “felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” 18 Pa. C.S. § 9125(b). CHRIA also forbids employers from “denying employment on the basis of an arrest not resulting in a conviction.” Commonwealth v. D.M., 548 Pa. 131, 137 n.2, 695 A.2d 770, 773 n.2 (1997); accord Foxworth v. Pa. State Police, 228 F. App’x 151, 155 (3d Cir. 2007). This law also requires employers to notify an applicant in writing if the decision not to hire is based in whole or in part on the applicant’s criminal history.
“Ban the Box” Ordinance
In Philadelphia, the Fair Criminal Record Screening Standards Ordinance, Philadelphia Code §§ 9-3501 to -3507 (the “Ban the Box” Ordinance), restricts when and to what extent employers may inquire about applicants’ criminal records. This ordinance applies to all employers with ten or more employees in the city of Philadelphia except criminal justice agencies. On employment applications, employers are prohibited from inquiring about any convictions and about arrests or criminal accusations that are not then pending. Before and during the first interview, employers are still prohibited from inquiring about such convictions, arrests, and criminal accusations. If an employer does not conduct any interviews, the employer is not permitted to conduct any inquiries regarding criminal records. After the first interview, employers may not inquire about or make any adverse employment decision based on any arrest or criminal accusation which is not pending and which did not result in a conviction. After the first interview, employers may consider convictions to the limited extent allowed under Pennsylvania state law.
For further information, please contact:
Benjamin D. Geffen
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway, 2nd Floor
Philadelphia, PA 19103
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