Can an employer refuse to hire me because of my criminal record?

Federal, state and local law all provide some protection against employment discrimination based on a person’s arrest or criminal record.

Federal law prohibits employers from illegal discrimination in violation of Title VII.  The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

• the nature and gravity of the criminal offense or conduct
• how much time has passed since the offense or sentence, and
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

The EEOC guidance also states that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Washington is one of the states that provides the most protections for job applicants with a criminal record. An employer is entitled to obtain complete criminal record information on candidates from the state only:

• for purposes of securing a bond required for employment
• for applicants to positions that have access to information affecting national security, trade secrets, confidential or proprietary business information, money, or valuable items, or
• to assist in an investigation of suspected employee misconduct that may also constitute a penal offense under federal or state law.

If an employer gets a person’s records, they must notify the individual within 30 days of receiving them or after completing their investigation of employee misconduct. The employer must allow the employee to examine the record.

An employer may make employment decisions based on an applicant’s conviction only if the conviction or the applicant’s release from prison occurred within the past ten years and the crime is reasonably related to the job duties for the position.

The city of Seattle also provides specific protection for employees.  The Fair Chance Ordinance limits how an employer can use a person’s criminal or arrest record in the hiring process and course of employment within Seattle’s city limits. This ordinance prohibits ads and job applications that automatically exclude individuals with an arrest or conviction record.  Employers within Seattle city limits are prohibited from asking questions about arrests or convictions until after they have conducted an initial screening to eliminate unqualified applicants.  Employers are required to give applicants or employees the chance to explain or correct information about their arrest/conviction records.

If you suspect you have been discriminated against in the hiring process you do have rights.