Arrest Record Discrimination Laws in Washington

Federal law does not explicitly prohibit employment discrimination based on arrest records. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, which prohibits discrimination based on race, color, religion, sex, or national origin. Since arrest records are often disproportionately applied to racial minorities, employers may face liability under Title VII if arrest record policies have a disparate impact on protected classes without business justification.

The EEOC issued guidance in 2012 stating that blanket exclusions of individuals with arrest records may violate Title VII. The Federal Trade Commission enforces the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, which requires employers using third parties to conduct background checks to obtain written consent and provide notice if adverse action is taken based on the report. Under the FCRA, employers must follow specific procedures but may legally consider arrest records in some contexts.

Federally, there is no statute creating a blanket prohibition against arrest record discrimination. State law, particularly Washington's RCW 9.97.020, provides significantly stronger protections than federal law by categorically prohibiting consideration of arrests not resulting in conviction.

Washington provides robust protections against arrest record discrimination that exceed federal standards. RCW 9.97.020 explicitly states that no person may be denied employment, be denied a professional or commercial license, or be otherwise penalized solely because of a prior arrest not resulting in conviction. This statute applies to all employers operating in Washington, with no size threshold, making it one of the strongest state-level protections in the nation.

Under Washington law, employers are prohibited from: (1) asking any question about arrests that did not result in conviction on job applications or during interviews; (2) considering such arrests in hiring, promotion, or termination decisions; (3) searching public arrest records to make employment determinations; or (4) taking adverse employment action based on an arrest record alone. The law covers all stages of employment from recruitment through termination.

Crucially, Washington does allow employers to consider convictions if they are directly and substantially related to the specific job duties and responsibilities. For example, a conviction for theft might be relevant to a position handling cash, or a conviction for violence might be relevant to a position working with vulnerable populations. However, the employer bears the burden of demonstrating the nexus between the conviction and job requirements.

Washington's law is substantially stronger than federal law because it creates an affirmative prohibition rather than relying on disparate impact theory under Title VII. State law covers employers of all sizes, whereas Title VII only covers employers with 15 or more employees. Additionally, Washington law does not require an employee to prove that the employer's conduct had a disparate impact on a protected class—the mere consideration of an arrest not resulting in conviction violates the statute.

Washington law contains important exceptions that employers may legally rely upon. First, employers may consider convictions (not arrests) if the conviction is directly and substantially related to the specific job duties and responsibilities. The employer must demonstrate a legitimate business nexus; mere speculation or general safety concerns are insufficient.

Second, certain professional licensing boards and governmental agencies may have broader authority to consider arrests and convictions. For example, the Washington Department of Licensing, law enforcement agencies, and healthcare licensing boards may evaluate criminal history more broadly due to regulatory requirements and public safety considerations. However, even these entities must follow statutory procedures when available.

Third, the statute does not apply to inquiries authorized by federal law or required by federal regulation. If federal law mandates consideration of criminal history for a particular position, Washington's arrest record protections may not apply. However, this exception is narrowly construed.

Fourth, an employer may lawfully refuse to hire or may terminate an employee based on conduct itself (not the arrest or conviction), if the employee's actual behavior demonstrates unfitness for the position. For example, if an employee's work conduct shows dishonesty or violence, the employer may act based on the conduct rather than the arrest record.

Finally, bona fide occupational qualifications (BFOQs) may justify consideration of criminal history in rare circumstances, such as positions requiring access to children or positions involving firearms. However, courts construe BFOQs narrowly.

Step 1: Document Everything Immediately. Keep detailed records of all communications with your employer regarding your arrest record, including email messages, text messages, written warnings, and notes of conversations. Document the date and context in which your arrest record was raised or discussed. Save copies of your job application, offer letter, and any background check reports you receive. Record the specific employment action taken (non-hire, termination, demotion) and the date it occurred. Retain any statements from supervisors or managers about why the decision was made. This documentation creates a clear timeline and evidence of the violation.

Step 2: Understand the Internal Complaint Process. Before filing an external complaint, consider whether your employer has an internal complaint mechanism. Review your employee handbook for anti-discrimination policies and grievance procedures. File a written complaint with your employer's human resources department describing the violation, when it occurred, and the impact on you. Keep a copy of your complaint and request written confirmation of receipt. This step may preserve employer records and demonstrate your good faith effort to resolve the issue internally, though it is not required by law.

Step 3: File a Complaint with the Washington State Human Rights Commission (HRTC). Washington's civil rights law, RCW 49.60.180, allows you to file a discrimination complaint. File either directly with the Washington State Human Rights Commission (address: Office of the Attorney General, P.O. Box 40100, Olympia, WA 98504-0100; phone: 1-800-233-3247; URL: https://sos.wa.gov/hrtc/) or with the EEOC for federal Title VII claims. There is no strict filing deadline under RCW 9.97.020, but federal Title VII claims must be filed within 300 days of the violation if filed with the HRTC (which shares jurisdiction). You will need to provide your name, contact information, the employer's name and address, a description of the discriminatory conduct, dates, and names of witnesses. Attach supporting documentation including your arrest record (if relevant), job application, offer letter, and internal complaint.

Step 4: Expect Investigation and Agency Review. After filing, the HRTC or EEOC will acknowledge receipt and may conduct an investigation. The agency will send a copy of your complaint to the employer, who will have an opportunity to respond. The agency may request additional information from both parties and may conduct witness interviews. Investigation timelines vary but typically take several months to over a year. During this period, cooperate with agency requests and provide additional documentation promptly. You will receive a determination letter that either finds probable cause of discrimination or dismisses the complaint. If dismissed, you may request a right-to-sue letter to pursue civil litigation.

Step 5: Consult with an Employment Attorney. Contact an employment attorney licensed in Washington who specializes in discrimination cases before filing or immediately after. An attorney can evaluate whether your case has merit under RCW 9.97.020, advise on the strength of your evidence, and guide you through agency procedures. If the agency investigation does not resolve your claim favorably, an attorney can file a civil lawsuit in Washington state court seeking damages for lost wages, emotional distress, punitive damages, and attorney fees. RCW 49.60.210 allows recovery of actual damages, court costs, and reasonable attorney fees, making civil litigation economically viable even for individual employees.