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Criminal Conviction Discrimination During Job Interviews

New York Criminal Conviction Discrimination Lawyers

Representing People in New York, New Jersey, Pennsylvania, & Florida

Across the country, people are becoming aware that employers often discriminate against people who have criminal convictions or who have been arrested. Many different jurisdictions have enacted "ban the box" legislation to prevent discrimination in employment on the basis of a criminal record when the background is not pertinent to the job at issue. 

If you face criminal conviction discrimination during a job interview, you should consult the experienced New York City criminal conviction discrimination attorneys at Phillips & Associates, Attorneys at Law. We can advise you on whether you may have a legal claim.

Under the Fair Chance Act, which amends the New York City Human Rights Law, employers in New York City that have a minimum of four employees are prohibited from inquiring into or discriminating against a job applicant until after a conditional offer of employment has been made to the applicant. This means that it is illegal for a prospective employer to ask you about a criminal conviction during a job interview prior to a conditional offer being extended. It is also illegal for employers to have you check a box on an employment application if you have been convicted of a crime. However, it is not illegal to ask about it in an interview after a conditional offer has been made.

This law does not apply to a prospective employer that takes certain actions based on federal, state, or local laws that require criminal background checks for employment or that bar employment based on criminal history. For example, the Securities Exchange Act of 1934 has specific rules that would run counter to the FCA, and those rules take precedence for certain employers that must follow those rules. There are also exemptions for certain law enforcement jobs.

If a prospective employer decides to take an adverse action after making the conditional offer of employment and running a criminal background check, there are additional requirements that it needs to follow. Employers are not allowed to deny you employment on the basis of a criminal conviction unless they find that hiring you would present an unreasonable risk to property or specific individuals' or the public's safety, or the conviction has a direct relationship to the job. A direct relationship is one in which the circumstances giving rise to the conviction have a direct impact on your fitness or ability to perform one or more job duties. Factors that must be considered in this analysis under Article 23-A include the nature of the crime, how long ago the events constituting a crime occurred, how old you were when the events happened, and information about rehabilitation.

If an adverse determination has been made, the employer needs to give you a written copy of the inquiry and a copy of the Article 23-A analysis with documents that support its decision. It must give you three days to respond to the analysis by holding the job open during that time. During those three days, you would have an opportunity to respond to any inaccuracies.

If you face discrimination during a job interview because your employer was covered by the FCA but violated it, you can pursue remedies through administrative procedures or court proceedings.

Employers in New York Outside of the City

New York employers outside of New York City may be covered by the New York State Human Rights Law, rather than the Fair Chance Act. Under the New York State Human Rights Law, it is illegal to discriminate against a job applicant or employee based on a criminal conviction if the refusal or denial violates Article 23-A of the New York State Correction Law. This law provides the standards that must be applied and the factors that an employer needs to consider before making an adverse employment decision based on a prior criminal conviction. However, under this law, an employer can inquire about your conviction during a job interview, or even as part of the application process.

Federal Legal Protections for Job Applicants with Criminal Records

Roughly 65 million U.S. residents currently have criminal records. Other studies show that over 90% of employers will ask to run a criminal history check on job applicants. These two figures create a lot of headaches for applicants who are otherwise qualified for a position. At the federal level, Title VII of the Civil Rights Act of 1964 prevents an employer from engaging in any type of employment discrimination, including decisions that extend to the hiring process.

Also, the Equal Employment Opportunity Commission (EEOC) has provided a number of guidance documents explaining to employers how they may lawfully identify applicants whose criminal records present an unreasonable risk. 

In determining whether an offense qualifies as presenting an unreasonable risk, the employer must evaluate:

  • The gravity and nature of the criminal offense or conduct;
  • The amount of time that has passed since the sentence or offense occurred; and
  • The nature of the job to be performed, including the location of the performance, the amount of supervision, and the level of interaction with other employees.

Additionally, the EEOC has advised employers to provide applicants with criminal records a chance to discuss any incidents and explain what happened, including any circumstances or information that may mitigate the situation.

Consult Our Lawyers for a Claim of Workplace Discrimination

Our experienced attorneys can advise you on the legal recourse that may be available to you if you have faced potential criminal conviction discrimination during a job interview. 

Call us at (866) 229-9441 or contact us online for a free appointment. Our attorneys do not charge upfront fees and handle our cases on a contingency basis, so we do not get paid unless we get compensation for you.

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