In certain instances, the law prohibits an employer from making hiring decisions based on a job applicant’s criminal history (or the lack thereof)
There is no federal law that clearly prohibits an employer from asking about arrest and conviction records. However, if employers use such records as a factor in their employment decisions and those decisions have a disparate adverse impact on the Title VII protected groups, the employer could be liable under Title VII of the Civil Rights Act of 1964 or even the Civil Rights Act of 1866, 42 U.S.C. § 1981, just to name a few.
The US Equal Employment Opportunity Commission (EEOC) has published revised EEOC Enforcement Guidelines to address this issue given the significant percentage of the U.S. population that has had contact with the criminal justice system.
According to the Bureau of Justice Statistics, nationwide, on December 31, 2010, there were 1,612,395, prisoners housed in the state and federal prisons; June 2011, 748,728 prisoners housed in local jails; in 2010, 4,055,500, adults on probation with another 4.4 million either moving onto off probation status or actually off probation; in 2010, 840,676, adults on parole with another 1.1 million either moving onto off parole status or actually off parole and in 2010, 4,887,900, adults under community supervision. The numbers are quite staggering. This brief summary of the statistical data does not include past years or the special populations such as Indians and juveniles.
Although there is no federal law that clearly prohibits and employer from asking about arrest and conviction records, New York is quite progressive in its attempt to address arrest discrimination. The New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) applies to employers with 4 or more employees and offers broader protections. Under the NYSHRL, arrest or criminal accusation would be the appropriate forms of discrimination. Under the NYCHRL, criminal conviction or arrest record would be the appropriate forms of discrimination.
Recently, the New York Senate began considering Bill Number: S968, which if ratified and enacted would amend the correction law, in relation to the manner through which enforcement proceedings are brought. The purpose of this bill is to ensure that persons illegally discriminated against by a public employer due to a prior criminal conviction unrelated to the employment sought is able to seek redress with the New York State Division of Human Rights.
If you feel that you’ve been the victim of arrest discrimination, or would like to have an attorney review your documents to ensure that your rights are protected, contact the New York Arrest Discrimination Lawyer at The Sanders Firm, P.C., today. We are your voice for justice.