Arrest Record Discrimination Laws in South Carolina

Federal law does not explicitly prohibit considering arrest records in employment decisions, but the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) to restrict arrest-based exclusions that have a disparate impact on protected classes. Under EEOC guidance (April 2012), employers cannot use blanket policies excluding all applicants with arrests; instead, employers must conduct an individualized assessment weighing the nature and gravity of the offense, time elapsed, and job relevance. Federal law covers employers with 15 or more employees. The EEOC enforces these standards and can investigate complaints of discriminatory application of arrest record policies. When arrests are used as a pretext to discriminate based on race, national origin, or other protected characteristics, federal law provides a remedy. However, lawful arrest records—especially for serious crimes directly related to job duties—may legally disqualify applicants. The EEOC's approach is to prevent race-based or national origin-based disparities in enforcement of arrest policies, not to ban all arrest inquiries.

Conviction records (as opposed to mere arrests) receive different treatment under federal law. Convictions may be considered more heavily, particularly for public sector positions. However, even convictions must be evaluated individually and related to job duties. The federal government does not require states to expunge arrest records, but many states, including South Carolina, have expungement statutes that allow arrest records to be sealed or destroyed under certain conditions.

South Carolina does not have a comprehensive state law prohibiting private employers from considering arrest records. South Carolina Code § 22-5-20 addresses expungement of arrest records, establishing that when an arrest is expunged (a legal finding that the arrest is deemed not to have occurred), the person is released from any obligation to disclose that arrest. However, even with this expungement statute, South Carolina law does not explicitly ban employers from inquiring about arrests or using them in hiring decisions for private sector positions.

This means South Carolina's state law is weaker than federal law on this issue. Private employers in South Carolina can generally consider arrest records in hiring and employment decisions, subject only to federal restrictions under Title VII (disparate impact analysis) and the EEOC's guidance. Public sector employers in South Carolina (government agencies) face stricter limitations and must follow constitutional standards under 42 U.S.C. § 1983, which prohibits employment decisions based on arrests that violate due process or equal protection rights.

Unlike states such as California or New York, South Carolina has not enacted a "ban the box" law requiring employers to delay arrest record inquiries until later in the hiring process. This means private employers can ask about arrests on job applications from the start.

The critical protection in South Carolina is expungement: under South Carolina Code § 22-5-20, when an arrest is expunged (which applies to most first-time offenders, arrests dismissed, acquittals, and certain other cases), an applicant may legally answer "no" to questions about that arrest, and an employer cannot discriminate based on an expunged arrest. Employers covered: all private employers in South Carolina, with the exception that federal contractors and employers with 15+ employees are also subject to federal EEOC standards. State and local government employers have additional constitutional restrictions. Unique protections: expungement allows applicants to legally deny the arrest occurred; employers who obtain expunged records through background checks may face civil liability. The remedy under state law is limited to the expungement itself and any state-law breach of privacy claims, but federal disparate impact claims under Title VII are the primary enforcement mechanism.

South Carolina law recognizes several important exceptions and limitations on arrest record protections. First, an arrest record that has not been expunged remains legally available to employers in South Carolina, and private employers may consider non-expunged arrests without legal restriction at the state level. Federal law (EEOC disparate impact standards) is the primary limitation.

Second, even expunged arrests may be revealed through federal background checks (FBI records) if the expungement was only at the state level. Some employers with federal contracts or security clearance requirements may access federal records, and the expungement statute's prohibition on using the arrest applies primarily to state-level records. An applicant should disclose if federal records might contain the arrest.

Third, conviction records are treated differently from arrests. South Carolina does not expunge most convictions (with limited exceptions for low-level offenses), and employers can use conviction records more broadly. A conviction is not protected by the expungement statute in most cases, and employers may exclude convicted individuals based on convictions more freely than arrests.

Fourth, certain occupations have statutory exclusions. For example, law enforcement, banking, childcare, and healthcare positions may have specific state or federal requirements barring individuals with certain arrest or conviction histories, regardless of expungement. These occupational exceptions are legal and not considered discrimination.

Fifth, if an arrest is directly related to the job duties (e.g., an arrest for theft for a position handling cash), the employer may have a business justification for considering it, even if the arrest was later dismissed. The exception does not require expungement to apply.

Sixth, at-will employment in South Carolina means an employer can refuse to hire or can terminate an employee for any reason that is not explicitly illegal. Arrest-based decisions are not explicitly illegal under state law, so the at-will doctrine generally permits them unless they violate federal law (disparate impact).

Seventh, very small employers (fewer than 15 employees) are not covered by Title VII or EEOC standards, so federal disparate impact protections do not apply to them. Only state law applies, and South Carolina state law does not restrict arrest record use for small employers.

Eighth, if an employer obtains an arrest record through a background check company and uses it in a way that violates the expungement statute or federal law, the employer may argue they relied in good faith on the background check report, which is a common defense, though not always successful.

Step 1: Document the Arrest Record Discrimination. Keep detailed records of when you applied, what you were asked about your arrest history, what you disclosed, and the employer's response. Obtain a copy of the job posting or application form showing arrest-related questions. If you have an expunged arrest, document the expungement order from the South Carolina court. Request your credit report and background check from the company that performed the screening (employers must disclose the source). Note the date you were rejected or not hired and any reason given. Save all emails, rejection letters, and communications with the employer. Take screenshots of online applications and job listings.

Step 2: Attempt Internal Complaint Process (if applicable). Contact the employer's human resources department in writing (email or certified mail) to lodge a formal complaint about arrest record discrimination. Explain that you were rejected due to your arrest record and, if applicable, state that the arrest was expunged and cannot legally be used against you. Request a written response and explanation of the hiring decision. Keep copies of your complaint and any response. This step creates a record and may prompt the employer to reconsider, though it is not legally required to resolve the issue. Many employers do not have a specific "arrest record complaint" process, so direct your complaint to HR or the hiring manager responsible for the decision.

Step 3: File a Charge with the EEOC. Visit the EEOC's website at www.eeoc.gov or call 1-800-669-4000 to locate your nearest EEOC field office in South Carolina. You have 300 days from the discriminatory decision to file a charge (this is the federal deadline, as South Carolina is a "deferral state" and does not maintain a separate state agency). You can file in person, by mail, or online via the EEOC portal. Provide the following information: your name and contact details, the employer's name and address, date of the alleged discrimination, detailed description of what happened (focusing on how the arrest record decision had a disparate impact if applicable, or was based on an expunged arrest), your protected class status if relevant (race, national origin, etc.), names of witnesses, and copies of your documentation (job posting, application, expungement order, background check report, rejection letter). You do not need an attorney to file a charge, and filing is free. The EEOC will assign your charge a number and notify the employer.

Step 4: EEOC Investigation Process. Once your charge is filed, the EEOC will conduct an investigation, which typically takes 60-180 days but can take longer. The EEOC will send a copy of your charge to the employer and request a response. The employer will submit a statement explaining the hiring decision and denying discrimination. You may be asked to provide additional information or clarification. The EEOC investigator may contact witnesses, review hiring records for other applicants, and analyze whether the employer's arrest record policy has a disparate impact on your protected class. For example, if you are Black and the employer systematically excludes Black applicants based on arrests at higher rates than white applicants, this is evidence of disparate impact. The EEOC will also verify whether your arrest was expunged and determine if the employer knew about the expungement when making the hiring decision. You will receive a "Right to Sue" letter if the EEOC finds no reasonable cause or closes the investigation. This letter allows you to file a private lawsuit in federal district court within 90 days.

Step 5: Consult an Attorney and Consider Litigation. Contact an employment law attorney licensed in South Carolina who has federal litigation experience (Title VII cases are federal cases). Many employment lawyers work on contingency (you pay nothing unless you win). Schedule an initial consultation to discuss whether your case has merit. The attorney will evaluate whether you can prove disparate impact (if arrested record policy is applied differently to your protected class), whether you relied on an expunged arrest and the employer violated the expungement statute, or whether you can establish pretext (the arrest was a cover for discrimination based on race, national origin, etc.). If you decide to pursue a lawsuit, you must file in U.S. District Court for South Carolina within 90 days of receiving the Right to Sue letter. Your attorney will handle pleadings, discovery, and negotiation. If you win, you may recover backpay (wages from the date of the decision to judgment), compensatory damages (emotional distress), punitive damages in some cases, and attorney fees.