Title VII of the 1964 Civil Rights Act, applicants and employees are protected from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or transgender status), national origin, age (40 or older), disability and genetic information (including family medical history).
While employment discrimination laws offer broad protections, they do not extend protected class status to individuals with criminal records. Title VII does not recognize criminal history as a protected characteristic, nor does it prohibit the use of background checks. However, employers must remain cautious, as relying on criminal history to make employment decisions can still result in significant legal risks:
Disparate Treatment & Disparate Impact
The first issue is disparate treatment, which occurs when an employer treats applicants or employees with similar criminal records differently based on protected characteristics—such as race, color, religion, sex, or national origin—in violation of anti-discrimination laws.
Secondly, if company policy results in disparate impact by disproportionately screening out members of a protected class and is not “job related and consistent with business necessity” there may be a violation of Title VII.
Individual Assessments
To minimize legal risk regarding criminal history in employment decisions, EEOC guidance recommends that employers conduct individualized assessments based on three key factors:
- The nature and gravity of the offense or conduct, with arrest records factoring in weaker than convictions
- The time elapsed since the offense, conduct, and/or completion of the sentence
- The nature of the job held or sought
Employee Rights When Employers Conduct Background Checks
Fair Credit Reporting Act (FCRA) applies when employers use third-party consumer reporting agencies for background checks (criminal, credit, etc.). Key requirements include:
- Clear, stand-alone written disclosure that a report may be obtained and used for employment decisions
- Written authorization from the applicant
- Provide a copy of the report and summary of FCRA rights
- Final adverse action notice if the employer proceeds with rejection of an applicant/firing an employee, they must provide details regarding the reporting agency and the right to dispute the report’s accuracy
Ban the Box Laws
Ban the Box laws aim to reduce employment barriers for individuals with criminal records by removing questions regarding conviction and arrest history from initial job applications. These regulations typically defer criminal history inquiries until later in the hiring process—often after a conditional job offer has been extended—to ensure candidates are first evaluated on their qualifications.
Wisconsin Law Regarding Criminal History in Employment Decisions
Although Wisconsin has no statewide private-employer Ban-the-Box law of the most restrictive type, the Wisconsin Fair Employment Act (WFEA) effectively limits early or automatic reliance on records:
- The Wisconsin’s Fair Employment Act (WFEA) goes further than Title VII, by explicitly prohibiting discrimination based on arrest record or conviction record in hiring, firing, promotion, and most other employment decisions although there are limited exceptions
- Blanket “no criminal record” policies are generally unlawful
- Employers are restricted in asking about arrest records on applications (generally limited to pending charges) and cannot refuse to hire or fire solely because of an arrest record
- Exception for pending charges: An employer may refuse to hire or suspend (but typically not terminate an existing employee) if the circumstances of the pending charge substantially relate to the job
As for conviction records, employers may refuse to hire or terminate only if the circumstances of the conviction substantially relate to the circumstances of the particular job. Courts examine whether the facts, events, and conditions of the offense materially relate to the facts, events, and conditions of the job (nature of the crime, job duties/safety risks, time elapsed, evidence of rehabilitation, etc.).
Denied Employment or Termination Based on Criminal History
Although there are protections under Title VII and state law, it is not uncommon for an applicant or employee to suffer an adverse employment action (rejection or firing) related to an arrest or conviction. Common issues job seekers face include:
~ Arrest records (especially older ones that never resulted in charges or that were dismissed/acquitted) should rarely be disqualifying under Wisconsin law or EEOC guidance, yet some employers still treat them as automatic bars or fail to investigate the underlying facts carefully.
~ Particular crimes that are viewed as substantially related such as theft/fraud for money-handling or finance roles; drug offenses (especially recent or involving trafficking) for safety-sensitive, transportation, or certain manufacturing jobs; violence or assault for roles involving public interaction, vulnerable populations, or security; driving-related offenses for driving positions. Time elapsed and job duties matter heavily—older minor offenses are less problematic than recent serious ones closely tied to the role.
~ Convictions, versus mere arrests, carry more weight and more easily support a “substantial relationship” finding when the offense matches job risks.
~ Inaccurate or incomplete background reports may include outdated information, records that should have been sealed/expunged, mixed-up identities, or reports that list arrests as if they were convictions.
~ Employer policies that contain rigid matrices or automatic exclusions without individualized assessment (disparate treatment/impact).
~ Failure to disclose a conviction when asked lawfully.
~ Employers who ignore FCRA obligations, skip individualized assessments or ignore state and federal laws or guidance are significant barriers for applicants.
When you have been denied employment or subjected to an adverse action—such as termination—based on an arrest or conviction, it is essential to examine the employer’s reasoning. Begin by requesting your background report to exercise your rights under the Fair Credit Reporting Act (FCRA) and dispute any inaccuracies. Ask the employer for the specific reason for their decision and whether an individualized assessment was conducted. You should provide written context and mitigating information, such as certificates of rehabilitation, references, and your employment history since the incident. If you believe discrimination has occurred in violation of federal or state laws, consider consulting an experienced employment attorney to discuss your situation. Potential remedies may include hiring or reinstatement, back pay, benefits, and other legal relief.
Contact Our Arrest Record Employment Discrimination Attorneys
When you believe you are being denied employment opportunities or you are being terminated due to an arrest or conviction, it is essential to pursue legal guidance from an experienced Wisconsin employment discrimination law attorney. Contact our employee rights attorneys at Alan C. Olson & Associates at 282-785-9606 for help.
