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Can employers refuse to hire people because of their criminal history?

On Behalf of | Oct 26, 2020 | Employment Law |

Many people are aware of employment laws that prohibit discrimination on the grounds of race, color, religion, sex or national origin. At the federal level, Title VII of the Civil Rights Act of 1964 lays the foundation for equal opportunity in the workplace. Many state laws echo and, to differing degrees, extend those protections.

State law

One additional protection prohibits discrimination on the basis of arrest records or criminal convictions. Many states have enacted such protections, but their scope and application vary. Two examples:

  • Wisconsin: In general, the law prohibits employers from discriminating on the basis of arrest or conviction records. There are limited exceptions. For example, employers can do so if required for bonding purposes, and they can ask about pending charges if they’re relevant to the job. They can also deny employment on the basis of felony convictions.
  • Illinois: The Illinois Human Rights Act bars employers from discriminating on the basis of arrest records as well as sealed or expunged records. They can take into account criminal convictions, so long as the employee (or prospective employee) signs a release.

Federal law

Criminal history isn’t a protected class under federal law (Title VII). That means discrimination on the basis of criminal records alone isn’t illegal at the federal level.

However, it can cross the line into illegal discrimination when it overlaps with a protected class. For example, if an employer turns away a Black applicant because of a DWI conviction, but gives the job to a white applicant who also has a DWI conviction, that may amount to race discrimination. And if an employer’s policy regarding arrest records or convictions results in a disproportionate exclusion of people of color, that, too, may be illegal race discrimination.

Speak up

If you believe you’ve experienced illegal discrimination because of your criminal records, talk to an employment attorney. You may be able to take legal action. You might be entitled to compensation, reinstatement, costs and attorney’s fees.