Arrest Record Discrimination Laws in Virginia

Under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), employers with 15 or more employees cannot discriminate in hiring, firing, or other terms of employment based on race, color, religion, sex, or national origin. The EEOC enforces Title VII and has issued guidance that while employers may consider conviction records in hiring decisions, they cannot apply blanket policies that automatically exclude individuals with arrest or conviction histories. Any policy must be job-related, consistent with business necessity, and individualized to assess the nature, gravity, and recency of the offense in relation to the specific job.

The Americans with Disabilities Act (ADA) also protects individuals from discrimination based on disability, including histories of substance abuse treatment. The Fair Credit Reporting Act (FCRA) governs background checks: if an employer uses a third-party consumer reporting agency to obtain arrest or conviction information, the employer must comply with notice and dispute procedures.

Federally, arrest records alone (not resulting in conviction) cannot be used as an automatic bar to employment if the policy has a disparate impact on protected groups. The enforcement occurs through the EEOC, which accepts charges within 180 days of the discriminatory act in non-deferral states, or 300 days in deferral states like Virginia.

Virginia does not have a comprehensive statute prohibiting discrimination based on arrest records alone. Virginia Code § 19.2-392 permits the expungement and sealing of arrest records under specific circumstances (acquittal, nolle prosequi, conviction reversed on appeal, or if charges are dismissed). Once a record is expunged or sealed, Virginia law generally prohibits disclosure of that arrest to employers or other parties, and individuals may legally answer that they were not arrested.

Virginia follows at-will employment doctrine under Virginia Code § 40.1-27.1, meaning employers can terminate employees for any non-illegal reason. Because Virginia has no specific statute prohibiting arrest-based discrimination, employers may consider arrest history in hiring and employment decisions without violating state law alone. However, Virginia recognizes implied covenant of good faith and fair dealing in some employment contexts, and employers cannot discriminate based on protected characteristics when evaluating arrest records.

The key distinction from federal law is that Virginia has no state-level EEOC equivalent; discrimination claims based on arrest records are primarily enforced through federal Title VII (for employers with 15+ employees) or through Virginia courts applying federal standards. For public employees, Virginia Code § 2.2-3004 establishes that hiring must be based on merit and fitness, which provides some protection against arbitrary rejection based solely on arrest history without individualized assessment.

Virginia does not have state bonding restrictions unique to arrest records, but federal law may apply to certain bonding programs. The state provides remedy through expungement, which allows individuals to legally represent that arrests did not occur. If you believe an employer's consideration of your arrest record was part of a pattern of racial or other protected-class discrimination, you may pursue a federal Title VII claim with the EEOC.

Virginia permits employers to consider conviction records (not mere arrests) in hiring and employment decisions, particularly for positions involving public safety, child care, financial responsibility, or security clearance requirements. No blanket exception exists in Virginia state law, but federal BFOQ (bona fide occupational qualification) exceptions apply: an employer can exclude individuals based on conviction history if the conviction is directly relevant to the job and constitutes an unacceptable risk (e.g., theft conviction for cashier position).

Arrest records that have been expunged or sealed under Virginia Code § 19.2-392 cannot be considered; employers who inquire about sealed arrests or use expunged records may face defamation or privacy tort liability under Virginia common law. However, law enforcement, federal background investigators, and certain bonding programs may access sealed records.

The at-will employment doctrine means Virginia employers have broad discretion in hiring decisions. An arrest alone does not create an exception to at-will employment unless the arrest itself violates a statute (e.g., if the arrest resulted from the employee's protected activity). Self-defense claims and false arrest defenses are rare exceptions and require proving the arrest was wholly baseless and the employer knew it.

Union-represented employees have limited additional protection: collective bargaining agreements may restrict consideration of arrest history, but the underlying law does not. Federal bonding exclusions may apply to individuals convicted (not arrested) of certain federal crimes, but these are not Virginia-specific and affect only bonded positions. Public employees have greater protection through merit system rules but still may be excluded based on individualized assessment of fitness for duty.

Step 1: Document the discrimination. Keep a detailed record of when you applied or were employed, the job title, the employer's stated reason for rejection or termination, and any communications referencing your arrest. Note dates, names of decision-makers, and whether the employer asked about arrests or inquired into details. Save copies of job postings, rejection letters, and any policies stating they consider arrest history. If you learned an arrest was discussed, obtain the names of witnesses and note what they heard. Maintain a timeline showing when the arrest occurred, when you became employed (if applicable), and when the adverse employment action occurred.

Step 2: Pursue internal complaint processes if available. If employed, request a meeting with HR or management to discuss the decision and ask for the written reason. Many Virginia employers have equal employment opportunity (EEO) policies or grievance procedures; review your employee handbook and follow those steps. Document your complaint in writing (email to HR) to create a record with a timestamp. Request written response explaining the employer's decision-making process. This step is not required to preserve legal claims but creates evidence of the employer's justification and may lead to informal resolution. If you are a job applicant, you may request information about the employer's hiring criteria and whether your arrest was a disqualifying factor.

Step 3: File a federal discrimination charge with the EEOC. Because Virginia has no state-specific law prohibiting arrest-based discrimination, your claim must rest on federal Title VII grounds (discrimination based on race, color, religion, sex, or national origin in consideration of the arrest), the ADA (if the arrest was related to disability), or retaliation (if the arrest resulted from protected activity). Go to www.eeoc.gov/filing-charge-discrimination or visit the Richmond EEOC office at 550 Main Street, Suite 400, Richmond, VA 23219 (phone: 804-771-2376). You must file within 300 days of the discriminatory act (Virginia is a deferral state). The charge form requires your name, employer name and address, date of alleged discrimination, description of discrimination, and how arrest history was considered. You may file online, by mail, or in person. Include documentation (rejection letters, emails, witness statements) and explain how the employer's consideration of your arrest had a disparate impact on your protected class or was pretextual for discrimination.

Step 4: Understand the EEOC investigation process. After filing, the EEOC sends a copy of your charge to the employer. The employer has 30 days to respond with their account and any evidence. The EEOC investigator will contact you and the employer to gather facts, request documents, and interview witnesses. This process typically takes 60-180 days depending on complexity and EEOC caseload. The investigator reviews whether the employer had a legitimate non-discriminatory reason for rejecting or terminating you (e.g., job-relatedness of arrest consideration, business necessity, individualized assessment). You will receive an "Investigator's Report" detailing findings. If the EEOC finds "probable cause" that discrimination occurred, they may attempt conciliation. If no conciliation agreement is reached, the EEOC issues a "Right to Sue" letter, which you must receive to file in court.

Step 5: Consult an employment attorney. Before or after the EEOC process, consult a Virginia employment law attorney who handles discrimination cases. An attorney can review your facts, assess whether you have a viable claim (whether the arrest consideration was part of a pattern targeting your protected class or whether federal FCRA or Title VII standards were violated), and advise on expungement options under Virginia Code § 19.2-392. If you cannot afford private counsel, contact the Legal Aid Justice Center (804-977-0801) or Virginia Lawyers for the Arts. After receiving a Right to Sue letter, you have 90 days to file in federal court (Eastern District of Virginia) or Virginia state court. An attorney will handle filing, discovery, and negotiation or trial. Do not delay; missing the 300-day EEOC filing deadline or 90-day Right to Sue deadline bars your federal claim.