People with a criminal record often feel discriminated against in the workplace, even years after the situation has occurred and they have shown growth as a person. Federal law allows employers to run background checks on potential employees. The law mostly gives employers a lot of discretion when these businesses are left with the decision to hire or promote an individual with a criminal record.
Even though employers are prohibited from any discrimination that might result from their hiring policies, it can, unfortunately, be difficult for an individual with a criminal record to find a job, especially in a competitive market or industry.
What Is a Criminal Record Discrimination Case?
Finding a job in any circumstance is often an overwhelming and complicated process. And with a criminal record, it can become even more stressful and difficult. Under federal law, employers in Pennsylvania can ask you about your criminal history and request you receive a background check during the hiring process. Some cities are passing laws to remove this law from the hiring process. Additionally, some states will require employers to wait until later in the hiring process to ask about conviction records.
Under the laws administered by the Equal Employment Opportunity Commission (EEOC), employers are prohibited from any discrimination on the basis of protected classes, such as race, gender, religion or national origin, that might result from any of their policies. Regarding criminal record discrimination, employers may not discriminate against job applicants with similar criminal records based on protected classes. This is protected under Title VII of the Civil Rights Act of 1964. Employers must be able to defend that their criminal record policy is relevant and necessary to their business.
Employers can avoid criminal record discrimination cases by considering:
- The nature of the job the candidate is applying for.
- How much time has gone by since the conviction.
- The seriousness of the conviction.
Additionally, according to Pennsylvania’s Criminal History Record Information Act, employers may only screen potential employees for a criminal record if it will help them decide whether the candidate will be a safe and reliable person to fill the position. Even so, an employer may only consider felony or misdemeanor convictions that appear on the candidates background report, as opposed to summary offenses or pending or dismissed charges. Suppose an employer chooses not to hire a potential employee wholly or partly due to their criminal record. In that case, they must inform the employee of the decision and their criminal record’s role in it in writing.
When an employer requests an employee or potential employee’s criminal record from consumer reporting agencies (CRAs), they must follow the Fair Credit Reporting Act (FCRA). This requires them to:
- Receive your permission before requesting a criminal history report.
- Give you a copy of the report before using it as a basis to take any adverse action against you.
- Send you a notice if they decide not to hire or promote you based on the CRA report’s findings.
How Do I Know If I Have a Criminal Record Discrimination Case?
In short, you might have a criminal record discrimination case if the conviction on your record does not affect your ability to be a safe and reliable employee at the job you are applying for. This is relevant to new potential hires and employees who might be applying for a promotion within their company.
Criminal Record Discrimination Settlements
Not all cases will go to litigation, and many will be fixed through a settlement. There is no “one size fits all” answer for what a settlement for a criminal record discrimination case might look like. Additionally, most settlement amounts are usually not disclosed. The following is a recent example of a criminal record discrimination case and its settlement amount in Philadelphia:
SEPTA Criminal Record Discrimination Settlement
After a years-long discrimination case that first began in 2016, SEPTA agreed to a $3.6 million settlement in January 2021. The settlement was first filed when a Philadelphia man applied for and was offered a bus driving position in 2014. The job offer was later revoked when drug-related convictions from 1997 were found as a part of his background check. The charges were considered irrelevant to the position given the length of time that had passed and the nonviolent nature of the charges.
Following the settlement, SEPTA will not prohibit employment for any felony or misdemeanor conviction unless required by law. The settlement is estimated to benefit 1,500 people.
Receiving Damages for a Case
The Criminal History Record Information Act (“CHRIA”) permits a person to file for damages caused by facing discrimination due to their past criminal record. The employer can be held responsible for no less than $100 for each violation for all actual and real damages. They can also be liable for punitive damages as well as litigation and attorney’s fees and costs:
- Punitive damage: An employer can be held accountable for punitive damage between $1,000 and $10,000 if the action is found to be willful.
- Attorney’s fees and costs: If your criminal record discrimination case is in violation of Title VII of the Civil Rights Act of 1964 or CHRIA, you are typically awarded attorney’s costs if you succeed in your case. You may also be entitled to attaining attorney’s fees through a settlement.
If you have lost your job because of criminal record discrimination and feel entitled to a wrongful termination case, you may also be awarded damages via medical expenses, lost benefits and earnings and job search costs.
How Much Is a Criminal Record Discrimination Case Worth?
As with receiving a settlement, the worth of criminal record discrimination cases will vary on a case-by-case basis. How much your criminal record discrimination case is worth depends on several factors, including:
- The damages you suffered due to the discrimination.
- The employer size — smaller employers might not be able to pay as much as larger businesses.
- Your employer’s past of possible infraction.
- How much proof you have and its strength.
- Whether your employer is willing to settle or willing to go to court.
- Whether your employer has insurance to cover the claims.
- Your willingness to pursue litigation if necessary.
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