Policies and legal standards governing the employment of people with criminal records are created mainly by state laws. However, the Equal Employment Opportunity Commission (EEOC) has ruled that employers governed by Title VII of the Civil Rights Act cannot deny people employment based on arrests that did not lead to conviction unless there is a “business justification”; nor can they deny people employment because of a criminal conviction unless there is a “business necessity.” An example of legitimate business necessity might be denying an applicant employment as a bus driver if he or she has a recent conviction for a driving-related offense. But an old drug conviction might not justify denial of employment for a food services job on grounds of “business necessity.” Minorities with arrest and conviction records whose civil rights are violated can sue under Title VII.
Employers in most states can deny jobs to people who were arrested but never convicted of any crime.
Millions of Americans are arrested but not convicted every year. Most people assume that if criminal charges are dropped or if they are found not guilty, records of those arrests will disappear or, at the very least, cannot be used against them when they apply for a job or housing. The facts suggest otherwise:
38 states have laws permitting all employers and occupational licensing agencies to ask about and consider arrests that never led to conviction in making employment decisions.
Only 10 states prohibit all employers and occupational licensing agencies from considering arrests if the arrest did not lead to conviction, and 3 states prohibit some employers and occupational licensing agencies from doing so.
Employers in most states can deny jobs to – or fire- anyone with a criminal record, regardless of individual history, circumstance, or “business necessity.”
Most states permit employers to deny jobs across the board to anyone who has been convicted of a crime or a certain category of crime, without considering the circumstances of the offense, its relevance to the job, the amount of time that has elapsed, the job being sought, evidence of rehabilitation, or the “business necessity” for barring the applicant, in potential violation of EEOC guidelines.
26 states have no standards governing the relevance of conviction records of applicants for occupational licenses. That means they can deny licenses based on any criminal conviction, regardless of history, circumstance or business necessity; 25 states do have standards that require a “direct,” “rational,” or “reasonable” relationship between the license sought and the applicant's criminal history.
34 states have no standards governing public employers
43 states have no standards governing private employers; 8 do
States have the power to offer certificates of rehabilitation but few issue them.
Employers in a growing number of professions, including home health care, nursing, education, eyeglass dispensing, plumbing, and even barbering, are barred by state licensing agencies from hiring people with a wide range of criminal convictions, even convictions which are unrelated to the job or license sought. All states have the power to lift those bars to employment by offering certificates of rehabilitation or some other form of restoration of rights in addition to pardons. Yet only 9 states -- Alabama, Arizona, California, Connecticut Hawaii, Iowa, Illinois, New Jersey and New York -- offer restoration of civil rights/certificates of rehabilitation for employment or occupational licensing purposes.