Arrest Record Discrimination Laws in Florida

Federal law does not specifically prohibit employers from considering arrest records. However, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Equal Employment Opportunity Commission's guidance recognize that blanket policies excluding all individuals with arrest records can have a disparate impact on certain protected classes (particularly Black and Hispanic workers), potentially violating Title VII if not carefully tailored. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, requires employers using third-party background check companies to comply with specific disclosure and consent procedures when requesting criminal history information.

The EEOC enforces the prohibition on using arrest records in ways that create disparate impact based on race or national origin. Federal law does not create an affirmative right to exclude arrest records from consideration, but it does require that any policy excluding individuals based on criminal history be narrowly tailored to avoid illegal discrimination. The EEOC has issued guidance stating that employers should evaluate the nature and gravity of the offense, time elapsed since the offense, and the nature of the job when making employment decisions based on criminal history. Private employers with 15 or more employees are covered by Title VII and subject to EEOC enforcement. Remedies available federally include back pay, front pay, reinstatement, and compensatory and punitive damages.

Florida law is significantly stronger than federal law in protecting individuals with arrest records from employment discrimination. Florida Statute section 112.011 establishes a bright-line prohibition on employer inquiries into arrests that did not result in conviction, with very narrow exceptions. Specifically, an employer may only inquire into or consider an arrest record if the record is substantially related to the particular position of employment sought, or if there is a legitimate business necessity for the inquiry or consideration.

Florida's statute applies to all employers in the state, regardless of size—there is no minimum employee threshold. This is broader than federal Title VII coverage, which only applies to employers with 15 or more employees. Under Florida law, an arrest that did not lead to conviction is considered distinct from a conviction record, and employers are prohibited from using non-conviction arrests as a basis for employment decisions unless the record is job-related and a business necessity exists.

Florida Statute section 435.07 further restricts the use of criminal history in employment contexts, particularly for licensing and hiring decisions. The state has adopted a "ban the box" approach by restricting when employers may inquire about criminal history. Additionally, Florida courts have interpreted these statutes to protect job applicants as well as current employees, meaning discrimination based on arrest records can occur at any stage of employment.

Unlike federal law, Florida does not require a showing of disparate impact; the statute itself forbids inquiry and consideration of non-conviction arrests except in narrowly defined circumstances. Remedies under Florida law include damages for lost wages, emotional distress, punitive damages (in cases of intentional discrimination), attorney's fees, and court costs. The Florida Commission on Human Rights enforces these protections and can award relief directly.

Florida law contains several important exceptions to the prohibition on considering arrest records. First, if an arrest resulted in a conviction, the employer may consider that conviction record if it is substantially related to the particular position of employment or if a legitimate business necessity exists. The employer bears the burden of proving the nexus between the conviction and job duties.

Second, certain occupations have statutory carve-outs. For example, Florida Statute section 435.07 permits consideration of criminal history for positions requiring background checks, such as childcare providers, school personnel, and healthcare workers. Positions involving access to children, vulnerable adults, or financial assets may justify broader inquiry into criminal history.

Third, employers may consider arrests if required to do so by federal law or regulation. For example, certain federally regulated industries (banking, securities, transportation) may have mandatory background check requirements that override state protections.

Fourth, the prohibition does not apply if the applicant or employee voluntarily discloses an arrest during the application or interview process; however, the employer still cannot make an adverse employment decision based solely on that non-conviction arrest unless the nexus and business necessity exceptions apply.

Fifth, if an individual applies for a position and is convicted of a crime after the application but before hire, the employer is not bound by the statute's restrictions. Additionally, the statute does not prevent an employer from investigating whether a criminal charge is pending or from considering pending charges where substantially related to the job.

Step 1: Document Everything — Keep detailed records of all communications related to the employment decision in question. Save job postings, application materials, interview notes, rejection letters, and any discussion or written statements about your arrest record. Document the dates, times, and people involved in conversations about your arrest. Preserve emails, text messages, and any written policies the employer distributed. If possible, obtain a copy of your criminal history report from the Florida Department of Law Enforcement to verify whether the arrest resulted in a conviction.

Step 2: Initiate Internal Complaint Process — Before filing with the state agency, send a written complaint to your employer's human resources department or management, clearly describing the alleged discrimination. State specifically that you believe you were treated unfairly because of your arrest record and reference the job position, date of the decision, and the dates of any discriminatory comments or actions. Keep a copy for your records and send it via email or certified mail so you have proof of delivery. While not always necessary, an internal complaint can establish a paper trail and sometimes leads to quick resolution. However, do not delay filing with the state because you are pursuing an internal remedy.

Step 3: File with the Florida Commission on Human Rights — You must file your complaint within one year of the alleged discriminatory act. File online at www.fdhc.gov or by mail at the Florida Commission on Human Rights, 411 Northwest 25th Street, Miami, Florida 33127. You can also file by phone at 1-800-670-7523 or in person at an FCHR office. When filing, provide your name, contact information, the employer's name and address, the date of the alleged discrimination, a detailed description of what happened, and whether you have filed a charge with the federal EEOC (dual filing is permitted). Include copies of supporting documents: job rejection letter, emails, witness statements, and your criminal history record. There is no filing fee.

Step 4: FCHR Investigation Process — After you file, the FCHR will send the employer a copy of your complaint and give them 30 days to respond. The FCHR investigator will then contact both you and the employer to gather evidence. You may be asked for additional documents or to participate in an interview. The FCHR will also contact witnesses and request the employer's personnel files and hiring records. The investigation typically takes 120–365 days. During this time, you will receive updates on the investigation status. The FCHR will issue an "Investigation Report" detailing findings. If probable cause is found, the FCHR will attempt conciliation (settlement); if conciliation fails, the case goes to the Florida Commission for Human Relations for a hearing before an administrative law judge.

Step 5: When to Consult an Attorney — Consider hiring an employment law attorney immediately if the discrimination resulted in job loss, significant wage loss, or emotional distress. An attorney can help you prepare your complaint, gather evidence, negotiate with the employer, and represent you at the FCHR hearing or in court if needed. Consult an attorney before filing if your case involves retaliation, a pattern of discrimination, or disability (which may implicate the ADA). Many employment law attorneys in Florida work on contingency, meaning you pay no upfront fee and the attorney is paid only if you recover damages. An attorney experienced in Florida employment law and discrimination cases is essential if the employer contests your claim or if a hearing is necessary.