Can Employer Reject Applicants with Criminal Records?

 In Blog

When hiring, can an employer lawfully reject applicants who happen to have a criminal record?

The U.S. Equal Employment Opportunity Commission does not think so, and has announced that it is suing two employers, auto maker BMW and retailer Dollar General, alleging that the practice disproportionately screens out African American job seekers. The complaints were filed in federal courts in Illinois and South Carolina.

Federal Law

Title VII of the Civil Rights Act of 1964 forbids racial discrimination against job applicants. The EEOC has increased its anti-discrimination actions in recent years – with 600 investigations carried out in 2011 versus less than 50 in 2006.

“There is no federal law that clearly prohibits an employer from asking about arrest and conviction records,” said the EEOC. ” However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

In other words, convicts do not have any special rights.  They are not a “protected class” under  any civil rights laws. However, the EEOC can sue if it believes information about prior convictions is being used to discriminate against a racial or ethnic group.

The Commission says instead of blanket rejections of all applicants with criminal histories, employers should give an applicant “the opportunity to explain the circumstances of the arrest(s) and should make it reasonable effort to determine whether the explanation is reliable.”

Job Related and Business Necessity

According to the EEOC, “Even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”).  If the employer does not show that such an exclusion is job related and consistent with business necessity for the position in question, the exclusion is unlawful under Title VII.”

The EEOC issued guidance to employers last year after PepsiCo agreed to pay $3.1 million and change its screening policy.  The EEOC alleged that Pepsi discriminated against African Americans by improperly using criminal checks. In some cases, Pepsi screened out job applicants who had a record of arrest (but no conviction).

So, Can an Employer Reject Applicants Solely Based on a Criminal Record?

Well, it depends on the facts.  Is the exclusion job related and consistent with business necessity?  Did the employer give the applicant an opportunity to explain the circumstances of the arrest and crime.

If you aren’t sure, it’s best to speak with an experienced employment attorney.


Questions about hiring or rejecting job applicants are not always easy to answer.  Laws can be difficult to understand.  Also, it’s not easy knowing which law may or may not apply to a given situation.  Get some guidance on employment law questions.  Give Koza Law Group a call today.  Contact us.

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