Arrest Record Discrimination Laws in Texas

Federal law under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits employment discrimination, and the EEOC has issued guidance that blanket policies denying employment based on arrest records may constitute unlawful racial discrimination because arrest rates vary by race and ethnicity. The Fair Credit Reporting Act (FCRA, 15 U.S.C. § 1681 et seq.) also restricts how employers can use arrest records obtained through background check companies—employers must comply with notice and dispute procedures. Federal law applies to employers with 15 or more employees and is enforced by the EEOC.

Under federal standards, arrests standing alone (without conviction) create particular concern because an arrest does not establish guilt. The EEOC's enforcement position requires that employers considering arrests in hiring decisions must: (1) assess job-relatedness and business necessity on a case-by-case basis; (2) consider factors such as the nature and gravity of the offense, time elapsed since arrest, and rehabilitation; and (3) avoid policies that have a disparate impact on protected classes. An employer may be liable for Title VII discrimination if its use of arrest records disproportionately excludes a race or ethnicity and the policy is not sufficiently job-related.

Federal remedies include back pay, front pay, compensatory damages for emotional distress, and attorney fees. However, federal law does not explicitly prohibit arrest-based decisions—it focuses on whether the decision has a discriminatory effect. The EEOC encourages individualized assessment but does not mandate it as Texas state law does.

Texas law provides stronger protections against arrest-based discrimination than federal law. Under the Texas Human Resources Code § 21.001, it is illegal for an employer to deny employment or otherwise discriminate against an applicant or employee based on an arrest record that has not resulted in a conviction. This applies to all employers in Texas without a minimum employee threshold.

Texas § 21.002 requires that if an employer considers an arrest record in making an employment decision, the employer must first assess the following factors: (1) whether the arrest relates to the specific position applied for; (2) how much time has passed since the arrest; (3) the nature and gravity of the conduct alleged; (4) the rehabilitation efforts undertaken since the arrest; and (5) any other relevant mitigating circumstances. This individualized assessment is mandatory—employers cannot apply blanket policies rejecting applicants with any arrest record.

Importantly, Texas law distinguishes between arrests and convictions. A conviction carries more weight in employment decisions, and employers have greater discretion to deny employment based on a conviction than on an arrest. Additionally, Texas law provides that if an arrest record has been expunged or sealed under Texas Criminal Procedure Code § 64.001 et seq., the employer cannot consider that record in employment decisions and the applicant may legally state they have not been arrested.

Texas law is enforced by the Texas Workforce Commission Civil Rights Division. Remedies under state law include actual damages, reinstatement, back pay, and attorney fees. Unlike federal law, Texas law explicitly prohibits arrest-based discrimination without requiring proof of disparate impact or membership in a protected class—the protection applies universally.

Texas law does not protect applicants or employees if their arrest has resulted in a conviction. Once an arrest results in a conviction, the conviction becomes the relevant record, and employers have significantly broader discretion to deny employment or take adverse action. This is a critical distinction—convictions do not receive the same level of statutory protection as arrests.

Furthermore, employers may deny employment or take adverse action based on an arrest if they demonstrate that the arrest is job-related and there is a business necessity for the exclusion. For example, an arrest for embezzlement may be highly relevant to a position handling cash, and an arrest for certain crimes may be relevant to positions working with children or vulnerable populations. However, the employer must conduct the individualized assessment required by § 21.002 and cannot simply categorize the entire occupation as inappropriate.

Texas law also does not apply to arrests that have been expunged or sealed under state law—if the record has been legally cleared, the employer cannot legally access or consider it. Additionally, certain background check companies may not report arrests more than seven years old unless they are for serious offenses, consistent with FCRA standards.

Employers may also have defenses if they demonstrate the employment decision was based on legitimate, non-discriminatory factors unrelated to the arrest. For example, if an applicant is rejected because they lack required qualifications, not because of the arrest, the employer has a valid defense. However, the burden remains on the employer to prove the decision was not influenced by the arrest record.

Step 1: Document Everything. Keep detailed records of all interactions with your employer or potential employer regarding your arrest record. Save emails, application materials, interview notes, and written feedback you received. Record the date you learned of the employment decision (rejection or termination), the stated reason from the employer, and any comments suggesting the arrest was considered. If you discussed your arrest with anyone at the company, document what was said and when. Maintain copies of your arrest record status and any expungement or sealing documents if applicable.

Step 2: Internal Complaint Process. Before filing a formal charge, consider whether the employer has an internal complaint procedure. Notify your employer in writing (email or letter) that you believe the employment decision violated Texas law regarding arrest records. Include specific facts: the date of the decision, what you were told, and how the arrest was discussed or considered. Request a written response and explanation. Keep a copy of your complaint. This step creates a record and may resolve the issue informally. However, failure to complain internally does not bar you from filing with the state agency.

Step 3: File a Charge with the Texas Workforce Commission. You must file within 180 days of the discriminatory act (the date of rejection or termination, not discovery). Visit the Texas Workforce Commission Civil Rights Division website at www.twc.texas.gov/jobseekers/file-charge-discrimination or call 512-475-2700. You can file online, by mail, or in person at your local TWC office. Provide: your full name and contact information; employer name and address; date of the adverse action; detailed description of what happened and how your arrest record was involved; names of witnesses; documentation of your arrest status; and copies of any communications. Filing is free.

Step 4: Investigation Process. The TWC will send a copy of your charge to the employer, who then has 20 days to submit a response. The investigator will then gather evidence from both sides, review your arrest record documentation, interview witnesses if necessary, and assess whether the employer violated § 21.001 or § 21.002. The investigation typically takes 30-90 days. You will receive updates on the status. The TWC will issue a "Determination" stating whether probable cause exists that discrimination occurred. If the TWC finds probable cause, either party may request mediation or file for a hearing before an Administrative Law Judge.

Step 5: When to Consult an Attorney. Contact an employment law attorney immediately if: the employer's response reveals intentional discrimination; you have suffered significant damages (lost wages, emotional distress); the employer retaliates against you after filing; or the TWC determination is unfavorable and you wish to appeal. A Texas employment law attorney can evaluate whether you have claims under Title VII (for disparate impact) or other federal statutes, represent you at TWC hearings, and pursue civil litigation for damages including back pay, emotional distress, and attorney fees. Many employment attorneys work on contingency for strong cases.