Workplace Discrimination That Can Follow a Conviction
A criminal record can follow you around for years.
Years after doing the time, paying the fines, and rebuilding your life, the conviction still hangs over your head. Especially when it comes to getting (or keeping) employment, that record can create a lot of trouble.
Here’s the thing…
Many employers factor criminal history into employment decisions. Occasionally, they violate the law by discriminating. Most employees aren’t aware of their rights.
This article covers how you can be discriminated against at work for being convicted, your protections from conviction based discrimination, and what to do about it.
Here’s what’s inside:
- What At-Will Employment Actually Means
- At-Will Employment Exceptions Workers Should Know
- How a Conviction Becomes a Discrimination Issue
- The Real Numbers Behind The Problem
- What To Do If This Happens To You
What At-Will Employment Actually Means
At-will employment is the rule in most US states, including Texas.
Basically, it allows an employer to terminate an employee for any reason whatsoever, at no advance notice. The employee can also leave their job whenever they’d like. Easy concept huh?
But there’s a catch.
“At-will” doesn’t mean “without rules”. Employers are still bound by federal and state law. It is still illegal to fire someone for an unlawful reason — such as race, sex, age, disability — even in an at-will state.
This is where things get interesting…
At-Will Employment Exceptions Workers Should Know
Employer friendly states actually have limited at-will employment exceptions. You can’t be fired for these reasons, even in right to work states. State lawmakers understand “at will” can be taken advantage of.
The main at-will employment exceptions include:
- Anti-discrimination laws: An employer can’t fire you based on your race, sex, religion, national origin, age, disability or genetic information.
- Retaliation protections: You cannot be fired for filing a worker’s comp claim, reporting harassment, or whistleblowing.
- Public policy exception: You cannot be terminated for refusing to commit a crime at the request of your employer.
- Express contracts: If there is a written contract stating that firing is limited in some way, the employer must abide by it.
If you reside in Texas and believe that you were terminated for any of the above reasons, you can meet with a wrongful termination lawyer Texas to determine if your case applies to any of these exceptions to at-will employment. These exceptions are narrowly crafted, but apply strongly.
The key idea? At-will is the default, not the ceiling.
How a Conviction Becomes a Discrimination Issue
Here’s where it gets tricky.
There is no federal law that states “you can’t fire someone because they have a criminal record.” Employers can take into consideration convictions when they hire and fire… to a degree.
But – this is the key – they can’t use criminal history to discriminate against a protected class.
Here’s what that looks like:
The EEOC’s enforcement guidance states that criminal record policies frequently result in a “disparate impact” on certain racial and national groups. Blacks and Hispanics are arrested and convicted at much higher rates than whites. Therefore, a blanket “no convictions ever” policy may disproportionately eliminate minority applicants.
That makes the policy a possible Title VII violation.
For instance, when an employer who will not hire qualified Black men with felony convictions hires white men with felony convictions, they are violating the law. The conviction is merely a pretext – race is the problem.
This is the kind of subtle discrimination that often hides in plain sight.
When Employers Cross The Line
Employers cross the legal line when they:
- Apply criminal history policies differently based on race or sex
- Reject every applicant with a conviction without considering job relevance
- Use old or unrelated convictions to deny employment
- Fire workers after a background check without giving them a chance to respond
The Fair Credit Reporting Act mandates employers to tell employees if they were terminated due to a background check. Many employers fail to do this — and that, by itself, can be used to prove a claim.
The Real Numbers Behind The Problem
This is a bigger issue than most people realise.
The U.S. Equal Employment Opportunity Commission received 88,531 new discrimination charges in fiscal year 2024. That number, which represents a 9% increase from the previous year, was led by allegations involving race, retaliation and disability.
How about Texas? Texas registered the highest number of discrimination charges of any state, accounting for more than 10% of all charges.
That’s a lot of workers fighting back.
Conviction Related Employment data is equally alarming. From 2003-2017, formerly incarcerated employees were employed nearly 50% less in federal employment versus those without a record. Huge disparity – and difficult to overcome if you’re seeking stable employment with a conviction.
The EEOC collected approximately $700 million in awards for victims of discrimination in 2024. So if you think these lawsuits don’t win… They Do.
What To Do If This Happens To You
You Believe You Were Fired or Rejected Due to Illegal Discrimination? Here’s What You Should Do:
Document Everything
Start writing things down right away. Note:
- Dates of conversations
- Names of people involved
- What was said about your conviction
- Any emails or messages you received
The more detail, the better. Memory fades fast.
File a Charge
You generally have 180 days to file a charge of discrimination against your employer. (Some states have agencies that will also handle your charge. In those states, you have 300 days.) Don’t wait. After the deadline, your claim expires.
You may file your charge with either the EEOC or your state Fair Employment Practice Agency. There is no fee and you do not need an attorney to file a charge.
Get Legal Help
An employment attorney can be worth their weight in gold if you have a complicated case. They understand local laws, know the deadlines, and how to handle an employer that is bullying you. Most work on contingency, which means you don’t pay unless you win.
Know Your “Ban The Box” Rights
Certain states and municipalities have laws known as “ban the box” laws. Under these laws, employers cannot ask about your criminal history prior to extending a conditional offer of employment. See if your local laws apply to you.
The Bottom Line
A conviction shouldn’t be a life sentence in the job market.
Yes. Employers can legally take into account criminal records. However, they can’t use criminal records as a pretext for discrimination based on race, national origin or another protected class. Exceptions to the at-will doctrine exist for that very reason, to prevent employers from disguising illegal reasons behind their “at-will” rights.
You believe that you have been discharged or denied employment because of a conviction. What You Should Do:
- Write down everything that happened
- Check the deadlines for filing a charge
- Talk to an employment attorney about your options
- Don’t let your past dictate your future
The law isn’t perfect, but real protections exist. Use them.