Most of us have heard about some of the most common types of workplace discrimination, such as discrimination based on race, gender or sexual orientation. There are also other types of unlawful discrimination, including, in some cases, discrimination due to a prior criminal arrest. If you have a criminal record, you probably know that this can potentially affect your employment opportunities.
You have legal rights against discrimination even with a criminal record
According to the Equal Opportunity Employment Commission (EEOC), employers can consider criminal records when making hiring decisions. They are under no legal obligation to ignore an applicant’s criminal record or pretend that it does not exist.
However, what employers generally cannot do is automatically disqualify all applicants with a criminal record from all employment opportunities. An employer with a blanket policy of never hiring anyone with any type of criminal record could be engaging in discrimination.
Although an employer may end up choosing to not hire someone for a particular position because of their criminal record, they cannot make that decision without asking some questions first.
Questions employers should ask
Some of these questions include what the exact crime was, the specific charges that were brought and what, if any, conviction was entered. The employer should also look at the amount of time that has passed since the crime or conviction.
Finally, the employer should compare these facts to the nature of the job. The crime involved may have nothing to do with an applicant’s ability to perform the specific job they are applying for.
For example, suppose you were convicted of a misdemeanor non-violent crime, such as vandalism, when you were 18 years old. If you are now 40 years old and trying to apply for a job as an accountant, being barred from doing that job because of your old vandalism conviction could be seen as discrimination.
However, if you were convicted of felony embezzlement two years ago and applied for a job working at a bank, an employer could have a valid reason for not hiring you based on your criminal record.
The point is that employers should thoughtfully analyze the situation before deciding not to hire someone because of a criminal record. The criminal record should typically have some relation to the job to justify a refusal to hire.
What about an arrest record?
When it comes to an arrest without a conviction, employers cannot refuse to hire someone based on only an arrest. An arrest does not mean that someone committed a crime.
Whether you were convicted of a crime in the past or simply arrested, you should be prepared to be questioned about the incidents. The anti-discrimination laws do not forbid an employer from asking you questions and requiring an explanation.
Prepare yourself to explain the circumstances of your criminal history, even if it was just one arrest. Do not lie or downplay the situation.
Most employers appreciate honesty and many are willing to listen to your explanation and treat you fairly. But if you are automatically disqualified because of a criminal record or feel like your record was used against you unfairly, it is important to talk with an attorney and find out if you have a case for discrimination.
