Criminal History Records

Over six million adults are in prison, jail, or under some other form of correctional supervision in the United States. Tens of millions have a criminal record of some kind. While those who commit crimes must be held accountable and pay their debts to society, after those debts are paid, they should have the opportunity to lead secure and productive lives. Far too often, unreasonable and unnecessary barriers continue to block their paths to employment, housing, and other basic human needs. The burden of this problem is felt throughout society. A disproportionate impact falls on black and Hispanic persons, their families, and communities. It is vital that the use of criminal history record information be nondiscriminatory and lawful.

The Pennsylvania Office of Attorney General enforces state and federal laws governing the use of criminal history record information. The Civil Rights Enforcement Section is responsible for enforcing state and federal anti-discrimination laws, which often are implicated by criminal records exclusions. The Criminal Law Division enforces the provision in Pennsylvania’s Criminal History Record Information Act governing the use of criminal records in hiring for employment. These sections of OAG work together to evaluate complaints. Where applicable, complainants are referred to other agencies in a better position to assist.

Federal Law

• Federal Civil Rights Laws – federal civil rights laws protect persons from discrimination on the basis of race or national origin (among other bases) in employment (Title VII), programs receiving federal funding (Title VI), and housing (the Fair Housing Act). Importantly, the prohibition against race or national origin discrimination includes not only disparate treatment (e.g., treating blacks or Hispanics with criminal records differently than whites with the same records), but also disparate impact. This means that using a criminal records exclusion, if shown to cause a significant impact against blacks or Hispanics, could violate the civil rights laws if the exclusion were not demonstrated to be consistent with business necessity.
• Fair Credit Reporting Act (FCRA) – entities that obtain someone’s criminal history information from third parties that regularly conduct background checks (defined as consumer reporting agencies (CRAs)) also must follow the FCRA. For example, FCRA requires them to: get the person’s permission before asking a CRA for a criminal history report; provide a copy of the report and a summary of his rights under FCRA before taking an adverse action based on information in the report; and send the person certain notices if it decides to take an adverse action based on the information in the CRA report.

PA Law

• Pennsylvania Human Relations Act (PHRA) – like the federal civil rights laws, the PHRA prohibits discrimination based on race or national origin (among other bases), including both disparate treatment and disparate impact. Thus, the use of criminal records exclusions may be challenged under state law under an analysis similar to under federal law.
• Employment with Commonwealth of Pennsylvania –
  • PA Constitution – a person may not be denied public employment in the Commonwealth of Pennsylvania on the basis of a prior conviction for which he has been pardoned, unless the conviction is reasonably related to the person’s fitness to perform the job sought, or to some other legitimate governmental objective. Hunter v. Port Auth. of Allegheny County, 277 Pa. Super. 4, 11 (1980).
  • PA Government Employment – in 2017, both Governor Wolf and the PA Civil Service Commission instituted a policy prohibiting consideration of arrests not leading to a conviction; annulled, expunged, or pardoned convictions; convictions for summary offenses; and convictions that do not relate to an applicant’s suitability for Commonwealth employment.

  Local Law

  Certain local communities in the Commonwealth prohibit inquiring about criminal history information until after an offer of employment, and/or require a strong justification for disqualifying someone based on a criminal background check. Philadelphia has the most comprehensive local law because it applies to city employment and private employment. Other localities have laws relating to criminal records as well that apply to government employment only, such as: Pittsburgh, Allegheny County, Allentown, Beaver County, Bethlehem, Lancaster, Northampton County, Reading, and York.

  Examples

  • An employer or housing provider requires all applicants to state whether they have ever been convicted of a crime, and rejects all applicants who answer “yes.” This is likely unlawful under state and federal anti-discrimination law and under CHRIA. Generally, assuming a disparate impact can be shown, an automatic across-the-board exclusion because of any conviction record, no matter what it is, cannot be shown to be consistent with business necessity or suitability. CHRIA also requires written notice to rejected employment applicants. (If a third-party was used to conduct the background check, the Fair Credit Reporting Act’s procedural rules also would apply.)
    • An employer or housing provider does not require all applicants to state whether they have ever been arrested or convicted. Instead, the employer or housing provider seeks only conviction records, and takes into account factors that bear on whether the person actually poses an unacceptable risk:
      • The nature and severity of the conviction;
      • The amount of time that has passed since the conviction;
      • The nature of the job or housing context; and
      • Other relevant mitigating information.

      Partnering Agencies

      • Pennsylvania Human Relations Commission
      • Pennsylvania Board of Pardons
      • U.S. Equal Employment Opportunity Commission
      • U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity
      • U.S. Federal Trade Commission, Fair Credit Reporting Act Resources
      • Community Legal Services of Philadelphia – Clean Slate Resources