Criminal Conviction Discrimination in New York
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Having a criminal record can make it difficult to find employment. Many employers assume that once an individual has been convicted of a criminal offense, he/she cannot be trusted to perform job duties. This type of discrimination is suffered by many people who have learned from their past mistakes; however, there are several state and federal protections for those with prior convictions facing criminal record discrimination.
At Nisar Law Group, P.C., we are dedicated to pursuing workplace equality for those who have previously been convicted of a crime. Our New York employment lawyers can evaluate your case and determine all of your available legal options to obtain the best results possible.
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New York & Federal Law Against Criminal Record Discrimination
Criminal conviction discrimination occurs when a worker is denied one or more opportunities because of a past conviction, as well as when a job applicant is not hired because of their criminal record. Fortunately, lawmakers at both the state and federal levels have put protections in place to ensure that this type of discrimination does not prevent a person’s ability to obtain employment.
In New York, employers that employ a specific number of workers are prohibited from discriminating against an employee solely because of the employee’s criminal record. However, if there is a direct relationship between the prior conviction and the job in question, or if the hiring the employee is going to be an unreasonable risk to property and pose a safety issue, then an employer can deny a person’s employment due to their criminal record.
While there are no federal laws explicitly prohibiting criminal record discrimination, this type of discrimination may constitute as illegal discrimination based on race and ethnicity if you belong to a protected class as a member of a racial minority. For example, African American make up only 13 percent of the nation’s population, but the FBI has discovered that the imprisonment rate for black men is nearly seven times higher than Caucasian men and nearly three times higher than Latino men. This means that employers’ decisions to refuse to hire on the basis of criminal record disproportionately impacts African Americans and Latinos.
the Equal Employment Opportunity Commission (EEOC) has provided guidance for employers on how to evaluate applicants with criminal records and to lessen the risk of discriminatory actions and behaviors. These include (1) the extent of time that has elapsed since conviction, (2) the type of criminal offense that was committed in relation to the job, and (3) the tasks involved in the job itself (e.g. the nature of the work, the amount of unsupervised time the person has, and the duration of interactions with others).
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Frequently Asked Questions About: Criminal Record Discrimination
The answer isn’t straightforward—it depends on how it’s done. Employers can generally consider criminal records in hiring decisions, but they can’t use them in ways that violate anti-discrimination laws or “Ban the Box” legislation.
The EEOC requires employers to conduct individualized assessments rather than blanket exclusions. They must consider the nature of the offense, how long ago it occurred, and whether it’s relevant to the specific job. For example, a 10-year-old theft conviction probably isn’t relevant for a construction job, but might be for a cashier position.
Many states and cities have “Ban the Box” laws that prevent employers from asking about criminal history on initial applications. These laws give you a chance to be evaluated on your qualifications first, before your criminal record is considered. However, this doesn’t prevent background checks—it just delays them until later in the hiring process.
To prove criminal record discrimination, you need to show that your criminal history was used inappropriately in an employment decision. This might involve demonstrating that the employer applied different standards to you than to others, used your record as a pretext for other forms of discrimination, or failed to conduct the individualized assessment required by law.
Strong evidence includes job postings or policies that categorically exclude people with criminal records, inconsistent application of background check policies, or situations where your criminal record clearly isn’t relevant to the job duties. If you can show that similarly situated employees without records were treated differently, that strengthens your case.
Documentation is crucial—keep records of job applications, interview communications, and any statements made about your criminal record. If the employer’s stated reason for rejection doesn’t make sense given the job requirements and your qualifications, you may have grounds for a discrimination claim.
People with felony convictions face discrimination in several ways, often beyond what’s legally permissible. Common forms include blanket policies that automatically disqualify anyone with a felony regardless of relevance to the job, being rejected without individualized consideration, or facing different standards than other applicants.
Discrimination also occurs through coded language in job postings like requiring “clean” backgrounds or “trustworthy” candidates, which can be ways to screen out people with records without explicitly saying so. Some employers conduct background checks earlier than legally allowed or ask about criminal history in ways that violate local “Ban the Box” laws.
The discrimination often extends beyond initial hiring—people with records may face different treatment regarding promotions, job assignments, or workplace policies. Some employers also use discovery of an undisclosed record as grounds for termination, even when the record isn’t job-related and disclosure wasn’t legally required.
Unfair treatment based on criminal records can include being held to higher performance standards than colleagues, being excluded from training or advancement opportunities, facing harassment or comments about your past, or being assigned less desirable tasks or shifts.
It also includes situations where your criminal record is repeatedly brought up inappropriately, where you’re treated as untrustworthy without cause, or where workplace policies seem designed to make your job more difficult because of your background. This treatment becomes illegal when it’s based on your criminal record in ways that violate anti-discrimination laws.
The key is whether the treatment is connected to legitimate job requirements or is simply punishment for having a criminal record. If your past doesn’t affect your ability to do your job, but you’re still being treated differently because of it, that may constitute unfair treatment that violates your legal rights.
Employers can make hiring decisions based on criminal backgrounds, but there are important legal limitations. They can’t use blanket policies that automatically exclude everyone with any criminal record, and they must conduct individualized assessments that consider the specific job requirements.
The decision must be based on legitimate business reasons—the criminal record must be relevant to the job duties or create an unreasonable risk. For example, someone with a DUI conviction might legitimately be excluded from a driving job, but probably not from an office job with no driving requirements.
Many jurisdictions have “Ban the Box” laws that prevent employers from asking about criminal history on initial applications, though they can still conduct background checks after making a conditional job offer. The timing and process matter legally—employers who ask too early or don’t follow proper procedures may be violating the law.
This depends on several factors, including when the background check was conducted, what your employment contract says, and whether you were truthful during the application process. If you lied about your criminal record when directly asked, termination might be legally justified based on dishonesty rather than the record itself.
However, if the employer conducted the background check improperly (like asking before they were legally allowed to), or if they’re using an old or irrelevant record to terminate you, you may have legal protections. Some states require employers to follow specific procedures before terminating based on criminal records discovered after hiring.
The key questions are whether the criminal record is actually relevant to your job performance, whether you had a legal obligation to disclose it, and whether the employer followed proper procedures. If you’re facing termination based on a background check, document everything and consider consulting with an employment attorney about your rights.
Whether a new misdemeanor will cost you your job depends on your employment contract, company policies, the nature of the offense, and how it relates to your job duties. Many employers have policies about arrests or convictions that occur during employment, but these policies must still comply with anti-discrimination laws.
If the misdemeanor is unrelated to your job—like a traffic violation for an office worker—termination based solely on that conviction might not be legally justified. However, if it’s job-related—like a theft conviction for someone handling money—the employer may have legitimate grounds for termination.
Some employers are required to terminate employees for certain convictions (like financial services companies with employees who handle money), while others have more discretion. Check your employee handbook for policies about criminal convictions, and remember that you may have rights even if company policy seems to require termination.
From an employer’s perspective, red flags typically include recent convictions, violent offenses, crimes involving dishonesty (theft, fraud), or offenses directly related to the job duties. However, what constitutes a “red flag” should depend on the specific job requirements, not arbitrary employer preferences.
Legally, employers should only consider records that are relevant to the position. A decades-old conviction, charges that were dismissed, or offenses completely unrelated to the job shouldn’t be automatic disqualifiers. The EEOC guidelines emphasize that employers should consider the nature of the offense, how recent it was, and its relationship to the job.
Be aware that some items on background checks may be legally off-limits for employer consideration, such as arrests without convictions, expunged records, or convictions beyond certain time limits depending on your state’s laws. If an employer is using these as reasons for adverse employment actions, they may be violating your rights.
This depends on your state’s laws and the specific job you’re applying for. Some states have “ban the box” laws or fair chance hiring laws that limit when and how employers can ask about criminal history. Other states have laws limiting how far back background checks can go—often 7 years for most purposes.
However, certain industries and positions may have different requirements. Jobs in finance, healthcare, education, or government may require disclosure of older convictions or have federal requirements that override state limitations. Some professional licenses also require disclosure regardless of age.
The key is understanding both your state’s laws and any industry-specific requirements. If you’re not legally required to disclose, you generally don’t have to volunteer the information. But if directly asked on an application or in an interview, lying about it could create bigger problems than the original conviction.
Criminal record discrimination occurs when employers make employment decisions based on criminal history in ways that violate anti-discrimination laws. This includes using criminal records as a pretext for race, gender, or other protected class discrimination, since criminal background policies can disproportionately impact certain groups.
It also includes failing to conduct individualized assessments, using blanket policies that exclude all people with records regardless of job relevance, asking about criminal history when prohibited by “Ban the Box” laws, or treating employees differently based on criminal records that aren’t job-related.
Workplace discrimination can be subtle—comments about your “trustworthiness,” being excluded from opportunities, facing different performance standards, or creating a hostile environment based on your criminal history. The discrimination doesn’t have to be explicit to be illegal if it’s based on improper use of your criminal record.
