Defending Decency
And Civil Rights In The Workplace

Can my criminal record be held against me?

On Behalf of | Jan 3, 2024 | Employment Law

You are probably familiar with some of the more common types of workplace discrimination, such as those based on race, religion, sex or ethnicity. However, what happens if you believe you are being discriminated against because of your criminal background?

Many jobs today conduct background checks on prospective employees. These background checks often include reviewing a job candidate’s criminal history. This could include criminal convictions, arrests or both.

In some cases, yes it can

These background checks are not illegal. In fact, there are some laws that state people with certain types of criminal records cannot be hired for certain jobs, which makes these background checks necessary.

However, the law forbids employers from treating employees with criminal records differently based on their race or natural origin.

Additionally, criminal history policies that are overly broad could be deemed illegal if it is determined that they unfairly exclude certain people or fail to accurately predict who will be a safe and responsible employee.

For example, if you are applying for a job and answer “yes” to a question asking if you have ever been convicted of a crime and are immediately disqualified from the job, this criminal history policy could be viewed as too broad.

The crime you were convicted of might have occurred 20 or more years ago, been a misdemeanor and non-violent in nature. Not even considering you for a job now may be illegal and a violation of your rights as a prospective employee.

What to do if you believe you were discriminated against

You should try talking to your employer about the situation first and reporting any incidents of discrimination. Deep detailed records of incidents and any communications with co-workers or managers about the situation.

You can always file a complaint with the Equal Opportunity Employment Commission (“EEOC”) if you believe you have been discriminated against because of your criminal background.

Before you talk to your employer or file a claim, there are important things you should know.

Employers are generally allowed to question you about your criminal background during an interview. They might ask you for more information about a prior arrest or conviction. This is not illegal.

They are also permitted to ask you about prior arrests even if you were not convicted. You might have been arrested for a crime you did not commit and later been found not guilty or had the charges dismissed. This does not prevent an employer from still asking you about the arrest.

If you do have a prior criminal history, whether of an arrest or conviction, be prepared to explain or discuss it with employers. You have a right to not be discriminated against because of it, but employers are allowed to ask you about it.

Proving discrimination can be challenging

Criminal records issues can be complex and whether you were discriminated against depends on various factors unique to your situation.

If your employer has an employee handbook or you were required to sign any forms regarding your criminal background before being hired, review them carefully. After that, it might be best to get advice from a professional before deciding to file a claim.