Arrest Record Discrimination Laws in Massachusetts

Federal law does not provide a blanket prohibition on arrest-based discrimination. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.), which prohibit discrimination based on criminal history if applied in a manner that has a disparate impact on protected classes (particularly Black and Hispanic workers). The EEOC's guidance establishes that employers cannot automatically exclude people with criminal records from employment without individualized assessment of job-relatedness and business necessity.

Federally, the enforcement burden falls on the EEOC to investigate charges and determine whether the employer's criminal history policy violates Title VII. Remedies under federal law include back pay, front pay, compensatory damages, and attorney's fees. However, federal law does not explicitly protect arrest records that do not result in conviction—only convictions are addressed in EEOC guidance.

Massachusetts General Laws Chapter 149, Section 24L provides significantly stronger protections than federal law by explicitly prohibiting employers from discriminating based on arrests not resulting in conviction. This is a blanket protection not found in federal statute. Under Massachusetts law, employers cannot:

(1) Seek information about arrests that did not result in conviction; (2) Base hiring or employment decisions on such arrests; (3) Consider sealed or expunged records; (4) Discriminate against applicants or employees solely because they have been arrested.

Massachusetts General Laws Chapter 149, Section 24 further restricts employer use of conviction records. While employers may consider convictions, they must conduct an individualized assessment weighing: (a) the nature and gravity of the offense; (b) the time elapsed since the offense; (c) the nature of the job held or sought; (d) evidence of rehabilitation; and (e) other relevant circumstances. This individualized inquiry requirement is more robust than federal law, which allows employers to categorically exclude people with certain convictions if job-related.

Coverage is broader than federal law—Massachusetts law applies to all Massachusetts employers with no employee threshold, whereas federal Title VII applies only to employers with 15+ employees. Private employers, public employers, and employment agencies are all covered. Remedies under Massachusetts law include actual damages (including emotional distress), punitive damages up to $5,000, and reasonable attorney's fees. Private right of action exists directly in state court without requiring an administrative complaint first, though Massachusetts Attorney General also enforces.

Massachusetts law contains narrow exceptions where arrest records may be considered. An employer is not prohibited from considering arrests or convictions if the crime is directly related to the specific job duties or responsibilities. For example, a bank may consider a prior fraud conviction for a teller position; a school may consider prior child abuse convictions for positions with unsupervised access to minors.

However, even when job-related, employers must conduct the individualized assessment under Chapter 149, Section 24 and cannot apply categorical bans. Additionally, employers are not prohibited from considering arrests if the applicant admits to the underlying criminal conduct or if the applicant voluntarily discloses it during the hiring process.

Arrest records that have been sealed, dismissed, or resulted in acquittal cannot be used. Records expunged under Massachusetts law are similarly protected from consideration. Conviction records older than seven years generally should not be considered unless the position involves unsupervised access to minors, vulnerable adults, or other sensitive roles, though this is a guideline rather than a rigid rule. Federal bonding requirements may limit hiring of people with certain convictions for positions requiring fidelity bonds, but this is an employer defense only if the bond cannot be obtained and the bond is necessary for the job.

Employees who voluntarily disclose arrests or convictions during employment are not automatically protected if the employer later uses that information in disciplinary action, though the employer must still comply with the individualized assessment requirement. Union employees covered by collective bargaining agreements may have additional protections depending on the contract language.

Step 1: Document Everything. Keep detailed records of all interactions with your employer regarding your arrest or criminal history. Save emails, texts, and written communications. Document the date you learned about the arrest-based discrimination, what was said, who was present, and any witnesses. Note how the arrest record affected your employment status (denied hire, terminated, denied promotion, reassigned). Write down the exact timing of when you disclosed your record and when the adverse employment action occurred. Take screenshots of job postings that ask about arrests or criminal history.

Step 2: Understand the Internal Process. Many employers have HR complaint procedures, but Massachusetts law does not require you to exhaust internal remedies before filing a legal claim. However, filing an internal complaint creates documentation and may preserve evidence. Request a meeting with HR or your manager's supervisor and explain the discrimination in writing if possible. State clearly: "I am being discriminated against based on my arrest record, which is prohibited under Massachusetts General Laws Chapter 149, Section 24L." Ask HR to provide a written response and explanation for any adverse employment action. Keep copies of all internal complaints and responses.

Step 3: File Your Claim. You have two options under Massachusetts law. Option A: File directly in Massachusetts Superior Court without prior administrative filing. You do not need to file with a state agency first. File a civil action under Chapter 149, Section 24L in the Superior Court in the county where you worked or where your employer is located. You have 3 years from the date of discrimination to file. You will need to allege: (1) you were arrested (or your record was used); (2) the arrest did not result in conviction, or the conviction was not individually assessed; (3) the employer discriminated in hiring, firing, promotion, pay, or terms of employment; (4) the discrimination caused you damages.

Option B: File a complaint with the Massachusetts Attorney General's Office, Civil Rights Division (https://www.mass.gov/info-details/civil-rights-bureau). Include: your name and contact information, employer name and address, date of discriminatory conduct, detailed description of what happened, copies of documents (emails, rejection letters, performance reviews showing the timing of adverse action), names of witnesses, and what remedy you seek (reinstatement, back pay, damages). The Attorney General can investigate and prosecute violations. However, filing with the AG does not toll the 3-year statute of limitations for your private right of action—file in court to preserve your claim.

Step 4: Investigation and Litigation. If you file in court, you must serve the employer with a summons and complaint. Discovery follows, during which you can request documents, emails, job applications of other applicants, the employer's hiring criteria, and the employment file of the decision-maker. Depositions allow you to question the employer's representatives under oath. The employer may claim the arrest was unrelated to the adverse action or that the decision was made for a legitimate, non-discriminatory reason. You must prove the employer knew about the arrest and that it was a motivating factor in the employment decision. Request the employer's policies on criminal history; if they ask applicants about arrests or convictions without conducting individualized assessment, this is strong evidence of violation. Most cases settle; if not, trial occurs in Superior Court before a judge or jury.

Step 5: Consult an Attorney. Contact an employment law attorney licensed in Massachusetts as soon as possible, ideally within 6 months of the discrimination. An attorney experienced in Chapter 149 cases can evaluate your claim, send a cease-and-desist letter, and represent you in litigation. Massachusetts law provides for attorney's fees recovery, so you may not pay out of pocket if you prevail. Legal aid organizations like the Massachusetts Law Reform Institute or local bar association referral services can help if you cannot afford private counsel. Your attorney can also advise whether to pursue federal claims simultaneously if the discrimination also involved a protected class (race, gender, etc.), which would involve EEOC involvement under Title VII.