For many, one of the first steps in the hiring process is the background check. Background checks generally provide an array of information to the employer, such as but not limited to: a person’s work history, education, credit history, motor vehicle reports (MVR’s), medical history, use of social media, drug screenings, and, criminal history. Specifically regarding criminal history, an employer will be able to view arrests, non-convictions, and convictions for any incoming employee and/or applicant.
As of 2018, it was estimated that 1 out of every 3 working-age individuals in the country had a criminal record, while over 60,000 individuals were released from prison that year. Despite the growing number of individuals with criminal records, criminal history can still hinder an individual’s ability to obtain or maintain employment as at least 95% of employers conduct a background check in some capacity or another. Reasons for a background check can either be due to the nature of the position or the sensitivity that the position entails, such as: working with children, working in law enforcement, or working with currency.
Despite the numerous reasons for a background check, an employer in Pennsylvania can’t discriminate against an individual based upon their criminal history after receiving an application pursuant to the Pennsylvania Criminal History Record Information Act (“CHRIA”). Under CHRIA, an employer may use the information on an individual’s application to decide whether to move forward with the hiring process. However, an employer may only consider an applicant’s felony and misdemeanor convictions to the extent the convictions relate to an applicant’s suitability for the position for which they have applied. If the employer finds that they are refusing to move forward with hiring the applicant, the employer must promptly provide written notice to the applicant of the employer’s decision and the basis for the denial, specially indicating whether it was based in whole or in part on the criminal history information.
In addition to CHRIA, the Equal Opportunity Commission (the “EEOC”) has stipulated that under Title VII of the Civil Rights Act of 1964, as amended, employers are prohibited from discriminating against individuals by using criminal history information if the basis of the discrimination is related to race, color, religion, sex, or national origin. Employment discrimination under Title VII is viewed usually under two forms of framework: “Disparate Treatment” or “Disparate Impact”.
Disparate Treatment Framework and Criminal Records
If an employer treats an applicant with a criminal history differently then another applicant with a similar criminal history based upon the protected classes under Title as mentioned above, this would be classified as disparate treatment. An example of this would be race discrimination in conjunction of a criminal record, as detailed below.
Example: Employer Joe Schmoe is viewing two applicants: Applicant 1 is Caucasian and Applicant 2 is African American. Both individuals have similar criminal records and consent to a background check for Joe Schmoe to consider their applications within the hiring process. However, Applicant 2 has a substantial work history and more experience in the particular nature of the position which Joe Schmoe is advertising. Nonetheless, despite Applicant 2’s superior credentials to Applicant 1, Joe Schmoe selects Applicant 1 for the position. This would qualifying as racial discrimination based upon stereotypical association with criminal history and would satisfy the prima face evidence for disparate treatment.
Disparate Impact Framework and Criminal Records
Unlike the disparate treatment framework, which looks at the discriminatory activity of the employer, the disparate impact framework views whether a neutral policy or practice of the employer has a disproportionate effect on a group of protected-class individuals and the policy or practice is not reasonably related to the position or deemed a business necessity.
In relation to criminal records, a policy or practice of employers will be viewed on whether the screening and/or use of criminal history information removes a particular protected classification of individuals from the application group and such policy or practice with the use of the criminal history information cannot be deemed by the employer to be reasonably related to the job or deemed a business necessity. Keep in mind that pursuant to 18 Pa. Cons. Stat. § 9121(b)(2)), Pennsylvania does not allow employers to use arrest records under an assumption of criminal conduct or within their assessment of criminal information history for the applicant. The consideration of criminal information history shall only focus on the conviction history of the applicant since convictions serve as sufficient evidence that the individual engaged in particular criminal conduct.
While the consideration of convictions under Federal and Pennsylvania law is allowed and employers can inquire into an applicant’s conviction(s) in the interview stage of the hiring process; the state and particular cities are taking initiatives to narrow the scope of how employers are able to inquire about convictions to protect individuals and the challenges they face in obtaining employment.
The “Ban-the-Box” Policy
In 2017, Pennsylvania adopted a statewide “Ban-the-Box” policy which instituted the removal of the criminal history checkbox from all public sector jobs. By negating the requirement for the checkbox of criminal history, the purpose of the policy was to further install an employment system based upon the merits of the application, rather than to be immediately tainted by the presence of a criminal record.
York and Philadelphia both have opted to adopt their own versions of the 2017 policy, both of which are stricter and additionally give more protection to applicants. In particular, Philadelphia adopted its policy in 2016 which applies to employers with one or more employees, prohibits any questions regarding criminal history on job applications but permits employers to consider convictions within 7 years of the date of the application, prohibits employers from asking at any time about arrests or criminal accusations that did not lead to conviction, and only allows employers to run a criminal background check only after making a conditional offer of employment.
In March 2021 and April 2021, additional restrictions were implemented to Philadelphia’s policy, when Bill No. 200614, 200413, and 200479 took effect. Bill No. 200614 amends the Unlawful Credit Screening Practices in Employment ordinance to clarify that Philadelphia employers following the FCRA’s adverse action regulations are also in compliance Philadelphia requirements. The ordinance makes clear that an employer needs to simply follow the FCRA’s pre-adverse action and adverse action requirements for credit screening. Such requirements for employers are to disclose their reliance on credit information to the applicant or employee in writing, identify the particular information upon which the adverse decision was based, and “give the employee or applicant an opportunity to explain the circumstances surrounding the information at issue before taking any such adverse action.
In addition to Bill No. 200614, Bill No. 200413 also amends the Unlawful Credit Screen Practices by removing the language that applies to the use of credit history information by law enforcement and financial institutions. Law Enforcement Agencies and Financial Institutions no longer have an automatic exemption under the amended law. These employers may use credit history information, but only if one of the other exceptions found in the original section of the ordinance applies
Finally, Bill No. 200479 amends Philadelphia City’s “Ban-the-Box” policy by providing additional clarification to the policy in the expansion of definitions for “employee” and “private employer,” in addition to the ordinance now applying to both employees and employers. Employers will also be allowed to inquire about pending charges, but only if the pending charges relate to the specific duties of the job and the employer has a written policy that details the pending charges that must be reported. However, employers may not take adverse action based on a pending criminal charge unless the charge bears a relationship to the duties of the job and the employer “reasonably” concludes that the continued employment would pose an unacceptable risk to the business, co-workers, or customers and terminating the employee is “compelled by business necessity”.
In general, if you find you may have been refused a position or withdrawn a job offer based upon your criminal history, you may have a potential state CHRIA claim and/ or a Title VII discrimination claim, depending upon the totality of facts. For these reasons, it is always best to consult with a knowledgeable and experienced attorney in the area of employment and labor law. We, at Mooney Law, are dedicated to assisting employees to obtain protection in the workplace and take action against unfair employment practices. To find out whether you have a claim, please contact Mooney Law to request a consultation at 717-200-HELP or 833-MOONEYLAW.