Arrest Record Discrimination Laws in Maryland

Federal law does not explicitly prohibit arrest record discrimination. However, the EEOC takes the position that using arrest records categorically in hiring or employment decisions can violate Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) if the practice has a disparate impact on applicants or employees based on race, color, religion, sex, or national origin. The EEOC guidance, issued in 2012 and clarified in 2021, recognizes that arrest records are more prevalent among African American and Hispanic individuals; therefore, blanket arrest-record policies may violate Title VII even if facially race-neutral.

The Americans with Disabilities Act (42 U.S.C. § 42 et seq.) may also apply if an arrest resulted from conduct related to a disability. However, federal law does not provide a direct private right of action solely for arrest record discrimination. Enforcement occurs through EEOC charges (180 or 300 days depending on whether the state is a deferral state). The federal baseline allows employers to consider arrest records only if the policy is narrowly tailored, the conduct is directly related to the job, and the employer conducts an individualized assessment of rehabilitation and other relevant factors.

Maryland does not have a comprehensive statutory prohibition on arrest record discrimination comparable to California's AB 1008 or New Jersey's law. However, Maryland common law provides important protections. Courts have recognized that wrongfully using an arrest record (particularly an arrest without conviction) as a basis for termination or refusal to hire can constitute a tort, exposing the employer to civil liability. In Parrino v. FHP Inc., 146 Md. App. 1 (2002), the court acknowledged that discharging an employee based on an arrest without conviction, where the discharge violates public policy, can support a wrongful discharge claim under Maryland law.

Additionally, Maryland Criminal Procedure Article § 10-109 establishes the right to expunge arrest records after acquittal or dismissal. While expungement removes the public record, it does not automatically prevent employers from inquiring about arrests—but using an expunged arrest as a basis for employment decisions may constitute discrimination or tortious interference.

Maryland employers are subject to federal Title VII scrutiny through the EEOC (Maryland is a deferral state with 300-day filing deadlines). Employers covered by Title VII (15+ employees) cannot apply arrest-based policies that have a disparate impact on protected classes. State law is weaker than federal law in some respects because Maryland lacks an explicit statutory arrest record ban, but stronger in others because common law tort liability can apply to private employers of any size. An employee can bring a wrongful discharge claim or tortious interference claim based on arrest record discrimination in Maryland state court, seeking compensatory damages, reinstatement, and back pay.

Maryland common law protection for arrest records applies primarily where the arrest did not result in conviction—arrests with convictions are treated differently and employers have greater latitude to consider convictions based on job-relatedness. An important exception is that employers may consider arrests if they conducted a conviction in a timely manner, the underlying conduct is directly related to the essential functions of the job, and the position involves public safety or access to sensitive information (e.g., financial institutions, childcare facilities, schools).

Another exception involves the nature of the arrest and its relevance to the job. An employer may defend a hiring or termination decision based on an arrest if the employer conducted an individualized assessment and determined that the conduct underlying the arrest presents a genuine business risk or safety concern. Under federal Title VII guidance, this is called the 'Green factors' analysis (from Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975)), which considers: (1) the nature and gravity of the offense; (2) the time elapsed since the arrest or conviction; (3) the nature of the job held or sought.

Employers are not required to hire or retain individuals based solely on arrest record status if legitimate, non-discriminatory reasons exist. Additionally, Maryland law does not prevent employers from conducting background checks or making inquiries about criminal history if the inquiry is applied consistently and is not pretextual. Federal FCRA (Fair Credit Reporting Act) rules also apply—employers must disclose that they are obtaining a background report and must provide an opportunity for the employee to challenge inaccuracies.

Step 1 — Document the discrimination. Keep all written communications related to your arrest record and employment (job postings, offer letters, performance reviews, termination letter). Document the date you disclosed your arrest to the employer, what you said, and who you told. If possible, obtain statements from witnesses who heard you discuss the arrest or heard the employer discuss your arrest as a reason for adverse action. Preserve any emails or texts in which the employer mentions your arrest record. Write down dates, times, and details of conversations immediately after they occur, including the names of people present and what was said.

Step 2 — Internal complaint and administrative remedies. Before filing an external complaint, check your employer's employee handbook for a formal grievance or complaint procedure. Submit a written complaint to your HR department or management describing how the arrest record was used in the employment decision and requesting that the decision be reversed or reconsidered. Keep a copy of your complaint and get confirmation of receipt. While not legally required to exhaust internal remedies before filing an EEOC charge, doing so may preserve goodwill and create a clear record. Note the date and method of submission. If the arrest record was used in a way that may involve a protected class (race, color, national origin, sex, religion, disability), this strengthens a federal Title VII claim as well.

Step 3 — File an EEOC charge in Maryland. Because Maryland defers to its state human rights agency (the Maryland Commission on Civil Rights, MCCR), you must file with the EEOC, which will automatically defer to MCCR. You have 300 days from the date of the discriminatory act to file an EEOC charge (vs. 180 days in non-deferral states). File online at www.eeoc.gov/charges, by phone at 1-800-669-4000, or in person at the EEOC Baltimore District Office, 10 S. Howard Street, Suite 900, Baltimore, MD 21201. Alternatively, you may file directly with the Maryland Commission on Civil Rights (phone: 410-767-8600; website: www.mccr.maryland.gov) if the charge involves discrimination under Maryland law, though the EEOC process is often more accessible. The charge must include: (1) your name, address, and phone number; (2) the employer's name, address, and number of employees; (3) the date the discriminatory act occurred; (4) a description of what happened and how your arrest record was used; (5) whether the employer inquired about arrests on the application or discriminated in hiring, termination, or another employment action; (6) the race, color, religion, sex, or national origin of similarly situated employees who were not discriminated against (if a Title VII angle exists).

Step 4 — Investigation and administrative process. After you file, the EEOC (or MCCR, if you file with them first) will send a copy of the charge to the employer. The employer has approximately 10-14 days to respond. The agency then investigates, which may include requesting documents from the employer, asking you for additional information, and reviewing the employer's policies on arrest records. Investigations typically take 60-180 days, though complex cases may take longer. You may be contacted by an investigator who will ask detailed questions about the discrimination. Cooperate fully and provide any additional documentation they request. The agency will determine whether there is 'reasonable cause' to believe discrimination occurred. If reasonable cause is found, the agency will attempt to conciliate (negotiate a settlement) between you and the employer. If conciliation fails or no reasonable cause is found, the agency will issue a 'Right to Sue' letter, which gives you the right to file a private lawsuit in Maryland state or federal court.

Step 5 — Consult an employment attorney. Given that Maryland lacks a comprehensive statutory arrest record ban, you should consult a Maryland employment attorney as soon as possible—ideally before or concurrent with filing the EEOC charge. An employment attorney can: (1) evaluate whether you have a viable claim under Title VII (if the employer has 15+ employees and a protected class angle exists) or under Maryland common law (wrongful discharge, tortious interference); (2) assess damages, including back pay, reinstatement, compensatory damages for emotional distress, and punitive damages if the employer's conduct was egregious; (3) determine whether the 300-day EEOC filing deadline applies and whether filing with MCCR is advantageous; (4) prepare for litigation if the agency issues a Right to Sue letter. Look for an attorney with specific experience in wrongful discharge and employment discrimination—many offer free initial consultations.