Ban the Box Laws in Pennsylvania: Criminal History in Hiring

Federal law does not impose a blanket ban on criminal history inquiries during hiring. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), which prohibits hiring discrimination based on race or color. The EEOC's Guidance on Criminal Records (updated 2021) discourages employers from categorically excluding people with criminal records because such policies have a disparate impact on Black and Hispanic applicants. Under federal law, employers may generally conduct criminal background checks at any time, but the timing and scope must be applied uniformly and not be pretextual discrimination based on protected class status.

Federal law does not address the timing of criminal history inquiries. The Fair Credit Reporting Act (15 U.S.C. § 1681) regulates third-party background checks but does not restrict when employers may ask. The Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) may restrict disability-related inquiries but not criminal history inquiries per se. Enforcement by the EEOC is available if an applicant can show discriminatory intent or disparate impact, but only for federal contractors or covered employers under Title VII.

Pennsylvania's Fair Criminal Record Screening Act (18 Pa.C.S. § 9125) is significantly more protective than federal law. The state statute imposes a strict timing restriction: employers cannot inquire about criminal history or conduct criminal background checks until after a conditional offer of employment has been made. This applies to all private employers with one or more employees, making Pennsylvania's coverage broader than federal Title VII (which requires 15+ employees).

Under Pennsylvania law, an "employer" includes any person employing one or more individuals for wages or compensation, significantly expanding the number of covered entities. The statute defines "criminal history" broadly as any arrest, charge, conviction, or sentence for any crime. Critically, employers cannot consider sealed, expunged, or pardoned convictions under any circumstances—applicants may legally answer "no" to questions about such records.

Pennsylvania law differs from federal baseline in several key ways: (1) it establishes a hard deadline for when inquiries can occur (post-conditional offer only), whereas federal law allows inquiries at any time if applied uniformly; (2) it automatically protects sealed/expunged records without requiring applicant disclosure, whereas federal law does not address expungement; (3) it applies to all employers with one employee, not just those with 15+; (4) it does not include a carve-out for certain job categories the way the statute contemplates limited exceptions for specific positions requiring background checks by law (e.g., child care, elder care, certain healthcare roles).

Remedies under Pennsylvania law include civil action by the applicant against the employer, recovery of damages for discriminatory hiring, attorney's fees, and costs. There is no state administrative enforcement agency comparable to the EEOC, making private litigation the primary remedy mechanism.

Pennsylvania's Fair Criminal Record Screening Act contains limited exceptions. First, the statute does not apply to inquiries required by federal law, regulation, or executive order. For example, if a federal statute (such as the backgrounds check requirements in certain healthcare or financial services laws) mandates criminal history inquiries, the employer may make those inquiries without violating state law.

Second, certain positions may be exempt if a specific statutory requirement mandates background checks. Examples include childcare workers, direct care workers for the elderly, and certain healthcare positions regulated by state licensing boards. However, the statute does not provide a blanket exemption for "sensitive" positions; exemptions must be grounded in a specific legal requirement.

Third, the statute does not prevent employers from asking about convictions after a conditional offer is extended. Once an offer is made, the employer may inquire about full criminal history and may withdraw or condition the offer based on the applicant's response.

Fourth, the statute does not prohibit employers from using other screening methods before a conditional offer—such as verifying employment history, education, or references—even if those references or background elements might indirectly reveal criminal history. The restriction is specifically on inquiries about criminal history itself.

Fifth, applicants are entitled to claim that sealed, expunged, or pardoned convictions do not exist, and employers cannot consider such records. However, this is not an exception to the law; rather, it is a protection for applicants. Sixth, the statute does not address internal promotions or transfers in the same company—it primarily addresses initial hiring. Seventh, the statute does not apply to law enforcement or investigatory agencies hiring their own employees, though this exemption is not explicitly stated in the statute and may depend on the nature of the employer.

Step 1 — Document the violation. Keep copies of all job postings, applications, and interview materials. If asked about criminal history before receiving a conditional offer, document the date, time, person who asked, and what was asked. Save emails, text messages, or notes from phone interviews. Retain rejection letters or any written communication indicating criminal history was a factor in the decision.

Step 2 — Understand internal complaint options. Most employers do not have an internal human resources process specifically for ban-the-box violations because these claims are not handled by the EEOC or state labor department. However, you may lodge a complaint with the employer's HR department in writing, explaining that you were asked about criminal history before a conditional offer. Document the date of your internal complaint. Note that internal complaints are not required before filing a civil lawsuit in Pennsylvania, unlike EEOC charges for Title VII claims.

Step 3 — File a civil lawsuit. Because Pennsylvania law does not assign enforcement to a state agency, you must pursue a private civil action in Pennsylvania state court. There is no filing with the state Attorney General or a labor department for ban-the-box violations. Consult a Pennsylvania employment attorney to file a civil complaint in the Court of Common Pleas in the county where the violation occurred. You will need documentation of the violation (emails, witness accounts, job posting screenshots), proof of damages (lost wages, emotional distress, lost opportunity), and evidence that the employer is subject to § 9125 (i.e., has one or more employees). The filing deadline is typically within four years of the violation under Pennsylvania's general statute of limitations, though an attorney should confirm the specific limitations period for your claim.

Step 4 — The litigation process. Once a civil complaint is filed, the employer will be served and must respond within a set timeframe (usually 20 days under Pennsylvania Rules of Civil Procedure). Discovery follows, during which both sides exchange documents, deposition transcripts, and written interrogatories. This process typically takes 12–24 months. The court may order mediation. If no settlement is reached, the case proceeds to trial before a judge or jury. Expect to provide testimony about the hiring process and the employer's violation.

Step 5 — Consult an employment attorney. You should contact an employment attorney in Pennsylvania immediately after the violation occurs or as soon as you realize you were asked about criminal history prematurely. An attorney can evaluate whether you have a viable claim, help document evidence, advise on settlement negotiation, and represent you in court. Because there is no administrative process (unlike EEOC charges), private litigation is your sole remedy, making legal counsel especially important. Look for an attorney licensed in Pennsylvania with experience in employment discrimination or wrongful hiring practices.