Arrest Record Discrimination Laws in Pennsylvania

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits employment discrimination based on race, color, religion, sex, or national origin. The EEOC enforces this statute and has issued guidance establishing that blanket policies excluding all individuals with arrest records may constitute unlawful disparate impact discrimination when applied without individualized assessment. The EEOC's April 2012 Guidance on Arrest and Conviction Records requires employers to evaluate whether the arrest is job-related and consistent with business necessity before disqualifying an applicant.

Federal law does not explicitly ban consideration of arrest records themselves, but the practical effect of EEOC enforcement is to require individualized assessment. Employers covered by Title VII (those with 15+ employees) cannot use automatic arrest-based disqualification that has a disparate impact on protected classes (primarily African American and Hispanic workers, who are arrested at higher rates). Remedies available federally include back pay, front pay, compensatory damages for emotional distress, and punitive damages up to $300,000 in cases of intentional discrimination.

The EEOC investigates charges filed within 180 days of the alleged violation (300 days in states with deferral agreements, though Pennsylvania has limited deferral status). The agency determines whether probable cause exists that discrimination occurred and can facilitate settlement or issue a Right-to-Sue letter allowing private litigation.

Pennsylvania does not have a statute that explicitly prohibits arrest record discrimination in hiring, distinguishing it from states like Illinois and New York that have passed comprehensive laws on this issue. However, Pennsylvania Human Relations Act § 951 et seq. broadly prohibits employment discrimination based on protected characteristics, and courts have interpreted this to encompass policies that have an unjustified disparate impact on protected groups.

Under Pennsylvania law, employers with 4 or more employees are covered by the state Human Relations Act. The state PHRC enforces this statute and has adopted the EEOC's practical standard requiring individualized assessment of arrest records. Pennsylvania courts have recognized that automatic disqualification based on arrest history can constitute unlawful discrimination when the arrest is not demonstrably job-related or when the policy has a disparate impact on a protected class.

A key distinction is that Pennsylvania's approach is largely identical to the federal EEOC standard: employers may consider arrest records if the record is job-related and consistent with business necessity. For example, a security company can consider arrests for theft; a financial institution can consider arrests for fraud. However, generic blanket policies that exclude all applicants with any arrest history are disfavored under Pennsylvania practice.

Pennsylvania does provide explicit statutory protection for prior convictions under § 4950 (now § 9125), which prohibits employers from disqualifying applicants solely based on conviction history without individualized assessment. While arrest records are not explicitly covered by this statute, PHRC has extended the underlying principle to arrest discrimination, particularly when arrest does not lead to conviction (a common scenario).

Remedies available under Pennsylvania state law include back pay, front pay, compensatory damages for emotional distress and humiliation, and punitive damages. The Pennsylvania Human Relations Commission can order reinstatement or hire, plus damages. Private right of action exists, and successful complainants may recover attorney fees.

Pennsylvania law contains important carve-outs and limits on arrest record protection. First, conviction records (not merely arrests) can be considered by employers, particularly in certain licensed occupations such as healthcare, childcare, and law enforcement. The distinction between arrest and conviction is critical: arrest alone does not indicate guilt, while conviction does.

Second, certain occupations are statutorily excluded from hiring protections regardless of arrest history. Licensed occupations regulated by the state (nursing, social work, teaching) can consider arrests or convictions when relevant to the license or role. Employers in security, law enforcement, and corrections have broader discretion to consider arrest history due to legitimate job-related concerns and legal requirements.

Third, an arrest resulting in acquittal or case dismissal provides stronger protection than an arrest resulting in conviction. However, Pennsylvania courts have held that even dismissed arrests can be considered if job-related under certain circumstances, though the burden on the employer is higher.

Fourth, Pennsylvania recognizes a business necessity defense: if an employer can demonstrate that excluding applicants with a specific arrest (e.g., arrest for embezzlement for a bank teller position) is essential to safe and efficient job performance, the exclusion may be lawful even if it has disparate impact. However, this defense requires empirical evidence of business necessity, not mere speculation.

Fifth, the "recency and reliability" principle applies: an arrest from 20+ years ago that did not result in conviction is unlikely to be considered job-related for most positions. Employers must weigh the passage of time against the nature of the alleged offense.

Sixth, at-will employment does not override these protections. Even in an at-will jurisdiction like Pennsylvania, employers cannot refuse to hire based on arrest records in violation of the Human Relations Act. The at-will doctrine does not permit discrimination.

Step 1 — Document the Discriminatory Act. Immediately preserve any written job application, email communications from the employer, job posting language, or rejection letter that references arrest history or background check findings. Photograph or screenshot online job applications that ask about arrests. Write down the date, time, and content of any conversation with a recruiter or hiring manager about your arrest record. Keep records of your qualifications, the job posting, and any communication showing you were otherwise qualified. Document the timeline: when you applied, when you were rejected, and when you learned the reason (if provided). Maintain these records for at least 3 years.

Step 2 — Attempt Internal Complaint (Optional but Recommended). Contact the employer's HR department in writing (email or letter) and request an explanation for the hiring rejection. State that you believe the decision was based on your arrest record and request reconsideration. Specifically note that arrests do not indicate guilt and that you were qualified for the position. Include any evidence that your arrest was dismissed, resulted in acquittal, or did not result in conviction. Keep copies of all correspondence. This internal step is not legally required but demonstrates good faith and may resolve the issue. Allow 10-15 business days for response before proceeding to external filing.

Step 3 — File with Pennsylvania Human Relations Commission. Visit the PHRC website (www.phrc.pa.gov) and submit a complaint form either online or by mail. The complaint must be filed within 180 days of the discriminatory act (hiring rejection date). Include: (1) your name, address, phone, and email, (2) employer name, address, phone, (3) the job title you applied for, application date, and rejection date, (4) a detailed description of how the arrest record was considered in the hiring decision, (5) the date you learned the reason for rejection, (6) your protected class if applicable (race, color, national origin, etc.—relevant if disparate impact is alleged), (7) copies of supporting documents (job posting, rejection letter, communications). The PHRC will acknowledge receipt and assign an investigator. You do not need an attorney to file, though one can help. The filing is free.

Step 4 — PHRC Investigation Process. The assigned investigator will contact the employer and request information about its hiring practices, background check procedures, and the reasons for rejecting you. The employer must provide job descriptions, hiring records, and policies. You will be interviewed in detail about your arrest record and the hiring process. This investigation typically takes 2-4 months. The investigator will review whether the employer had a legitimate, documented business reason for considering your arrest record in the hiring decision and whether that reason was job-related. If the employer cannot articulate a specific, job-related reason (or if it had an across-the-board policy excluding all applicants with any arrest), the investigator will likely find probable cause for discrimination. The PHRC will issue a "Probable Cause" or "No Probable Cause" determination. If probable cause is found, the PHRC attempts conciliation (settlement negotiation) between you and the employer. If conciliation fails, the case proceeds to public hearing before an administrative law judge.

Step 5 — Consult an Attorney and Determine Next Steps. Once probable cause is issued or you receive a Right-to-Sue letter (if you also filed federally), consult an employment attorney licensed in Pennsylvania. Employment discrimination attorneys typically work on contingency (no upfront fee; they take a percentage of recovery). An attorney can represent you in settlement negotiations, before the PHRC administrative hearing, or in federal court if pursuing a Title VII claim. If you wish to pursue both state and federal claims, federal court may be preferable due to higher damage caps (Title VII allows punitive damages up to $300,000 for larger employers). An attorney can also advise whether filing a concurrent federal EEOC charge is strategically beneficial in your case (this must be done within 180 days of the discriminatory act; the EEOC and PHRC have a work-sharing agreement).