Criminal History Records

• 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.

• 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.
• Pennsylvania’s Criminal History Records Information Act (CHRIA) – when an employer is in receipt of information from an applicant’s criminal history record information file, the employer can use that information in making the hiring decision. However, felony and misdemeanor convictions may be considered only to the extent to which they relate to the applicant’s suitability for employment in the position of which he has applied. Moreover, the employer must notify the applicant in writing if it bases the decision not to hire in whole or in part on the criminal history record information. 18 P.S. § 9125(a)-(c).
• Clean Slate Law (2018 Amendment to CHRIA) – in 2018, the Pennsylvania General Assembly amended CHRIA to provide for a “clean slate” remedy for certain offenses, allowing many criminal records to be sealed so they cannot be used by employers, landlords and others. Some records will be sealed automatically. Other records may be sealed or expunged upon request. The law is complicated, but generally, records that can be sealed are those that for which there was no conviction; summary offense convictions more than 10 years old (e.g., disorderly conduct); and many misdemeanors more than 10 years old. Eligibility generally requires that all fines and debts have been paid, and that there were no further convictions.

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.

• 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.
  • This is likely lawful under state and federal anti-discrimination law, and under CHRIA, assuming written notice was given 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 treats black and Latino applicants with a criminal record differently than white applicants with the same or similar criminal record. This is unlawful discrimination.
• An employer or housing provider screens applicants’ backgrounds for not only convictions, but also arrests that never led to a conviction. This is likely unlawful under state and federal anti-discrimination laws and under CHRIA. Generally, assuming a disparate impact can be shown, an arrest record standing alone may not be used to deny employment or housing. An arrest record does not constitute reliable proof of past unlawful conduct, and is often incomplete. Thus, it is not a reliable indicator that someone poses an unacceptable risk and exclusions based on arrests generally 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 uses a third-party background screening provider to do its background checks. The Fair Credit Reporting Act (FCRA) likely applies. This means that the employer or landlord must obtain written permission from applicants or tenants to show that it is for a permissible purpose; and, if the employer or landlord takes any other adverse action based partly or completely on the information, the applicant or tenant must be notified. Employers or landlords who use “investigative reports” – reports based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – have additional obligations under the FCRA.

• 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