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  1. #1
    Join Date
    Dec 2016
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    3

    Unhappy Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    My question involves civil rights in the State of: Illinois

    I applied for a job at an educational institution in Chicago. I went through all the interviews and they offered me a position based on a successful background clearance. I advised them that I had a felony assault on my record in Texas, but it was 23 years ago in 1993. Since then, I completed school, obtained a bachelor's degree in 1994, a master's in 1999, worked as a juvenile probation officer, worked in K-12 Public Education for 20 years (teacher, coordinator, administrator) and had outstanding employment situations. Additionally, I'm in school now pursuing a Ph.D. I received an email from HR that said I completed the background and the committee cleared me. I was then sent I link for on-boarding to complete the employment process. As a part of the employment process, I received a letter of offer for employment. I thought I was done. A week later I got a call from another HR person who said they were not going to extend me an offer. She bought up the criminal background that I was told in an emailed I was cleared on, by their committee. She refused to go into anymore detail. I feel as though I was discriminated (Title VII) based on the criminal background in spite of the fact I have been so successful in education settings and have not had any convictions in 23 years. At the time of my 1st incident, I was 27 and immature and made a serious mistake. Since then, obvisously I am more mature at 50, have proven myself and had success. When does this fear and discrimination over hiring someone with prior criminal history ever stop, or does it? What are my rights and possible actions hear?

  2. #2
    Join Date
    Jul 2010
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    8,006

    Default Re: Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    You have the right to seek other employment.

    Illinois does not bar employers from considering convictions unless they have been sealed or expunged, which you apparently did not do.

    Title VII only comes into play under certain circumstances. Why do you believe it applies in your case?

  3. #3
    Join Date
    Dec 2016
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    3

    Default Re: Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    Because in Illinois they have to consider when the acts happened (23 years ago), they have to consider the circumstances (immature), they have to consider the relevance of the crime and link it to the job and they must consider if I have contributed to any rehabilitative acts since then. As I mentioned in the initial post I done that through education and previous jobs where I was successful. This involves Title VII of the Civil Rights. The EEOC has even weighed in on this based on disparity involving criminal background checks since 92% of employers use them today.

  4. #4
    Join Date
    Oct 2014
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    Default Re: Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating against employees (and prospective employees) on the basis of race, color, national origin, religion, and sex. It does not expressly prohibit an employer from discriminating against an employee or prospective employee on the basis of a criminal conviction. Nor does any other federal law expressly prohibit that either.

    However, the federal Equal Employment Opportunity Commission (EEOC), which is the agency that enforces Title VII, has taken the position that a blanket policy by an employer of refusing to hire anyone with a criminal record may amount to illegal race discrimination. It reaches that conclusion because Black and Hispanic persons are convicted of crimes at a significantly higher rate than white persons, and as a result a rule barring all persons with a conviction from employment, while not racially discriminatory on its face, would nevertheless have the effect of barring more Black and Hispanic applicants from getting jobs than applicants of other races. There is some support in case law (court decisions) that employment policies that look racially neutral but that nevertheless negatively affects some races more than others (what is known in the law as disparate impact) may violate Title VII. As a result, the EEOC recommends that employers instead more narrowly confine their rules on barring convicts to those situations in which there is a logical connection between the offense and the job that the person is seeking and that takes into account how long ago the conviction was and what the applicant has done since. You can read the entire EEOC position here: EEOC policy statement on use of convictions.

    The problem is, of course, that the EEOC policy position is not itself law. It is the agency’s interpretation of Title VII, and one that has yet to get strong support from the courts. Convicts as a class do not draw much sympathy, which makes pursuing this theory in court harder for the EEOC and for applicants who, like you, feel you were wrongly denied a job based on your conviction record. Moreover, because the policy is based on a racial disparate impact analysis, if you are not one of the races that has been shown to have a significantly higher conviction rate than whites you have a problem claiming that the policy is racially discriminatory against you. In short, if you are white this theory is not likely to be of any help to you even if the EEOC position was otherwise sound.

    A few states have laws that expressly regulate how employers handle hiring of persons with conviction records. Illinois is not one of those states. Illinois does have some protection against having an arrest record used against you (and more and more states are at least addressing the issue of arrest records that never lead to a conviction) but of course that does not help you.

    If you want to pursue this, I suggest you promptly seek advice from a lawyer who litigates employment discrimination claims for employees to see if you might have a realistic shot to win anything based on being rejected based on your criminal record. Bear in mind that to sue under Title VII you must first timely file a complaint with the EEOC. You may have as little as 180 days from the date you were turned down for the job to that although I think that in Illinois that time is extended to 300 days. But you want to check that to make sure what the correct timeline is. It matters in what state the job you were applying for was located as to how much time you have. Read more on this here: time for filing EEOC complaints. Failure to file the complaint timely forever bars a lawsuit against the employer.

    You did not say what the job was and that might make a difference. There are some jobs for which any conviction on a crime of violence would pretty much result in an automatic rejection because of the need to ensure vulnerable persons (kids, the sick, disabled, elderly etc) are protected and that kind of prohibition might well pass muster even under the EEOC policy.

    I commend you on turning your live around in the last 23 years. I wish I could say that a criminal record from that long ago would not be a significant problem in hiring you given all that you have done since. But the reality is that it will still be an issue for some employers, and under present law it is difficult to prevent that. But not all employers are so inflexible, as your own job history shows. I wish you the best on your employment search, even if you strike out on getting any recourse for this job rejection.

  5. #5
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    Jul 2010
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    Default Re: Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    Quote Quoting LMC4bite
    View Post
    Because in Illinois they have to consider when the acts happened (23 years ago), they have to consider the circumstances (immature), they have to consider the relevance of the crime and link it to the job and they must consider if I have contributed to any rehabilitative acts since then.
    I see no such requirement in the laws of Illinois. Please post a link.

    Quote Quoting LMC4bite
    View Post
    As I mentioned in the initial post I done that through education and previous jobs where I was successful. This involves Title VII of the Civil Rights. The EEOC has even weighed in on this based on disparity involving criminal background checks since 92% of employers use them today.
    Again, why do you believe that Title VII applies here? Just because the offer was rescinded due to the conviction does not automatically make Title VII apply.

  6. #6
    Join Date
    Dec 2016
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    3

    Default Re: Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    Thank you! You have provided valuable information for me to look into.

    Thank you for your reply. I will await other replies to guage their knowledge of this matter against yours. However, I appreciate your response.

  7. #7
    Join Date
    Feb 2008
    Posts
    1,179

    Default Re: Can I Sue Prospective Employer for Declining to Hire Based on Criminal Background

    If you want another reply -- I have to 100% agree with those above and would probably go further than what they have said...

    I do have to ask if when you are interviewing whether you reveal this or whether it is something that you allow to pop up unexpectedly at the last BG check hoping they won't find or use it? I would personally think that doing so would go a long way in pleading your cause earlier and being able to explain it then. No HR person wants to get that far in the interview/hire process to have this come out and have to make this decision after a job offer has been issued, I can promise you that!

    I'll go a bit further and say That if they have a "bonafide occupational qualification" why your conviction is a detriment in that position, it truly doesn't matter what Title VII protection you fall under. A simple example is not allowing someone with a theft record to work a position that handles money. Regardless of how long ago it was. I do agree that the EEOC and others are trying to interpret the laws more liberally than they currently stand on the books. They make "suggestions" on how to keep the employer out of hot water, but in the end it is up to a court, not the EEOC to decide if it is truly discrimination (and that is after months and years of litigation)

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