Adverse employment consequences triggered by criminal convictions

Abstract

This Article surveys recent adverse employment action cases based on employees’ criminal convictions. The various formulations of anti-discrimination legislation adopted by Hawaii, Wisconsin, Pennsylvania, and New York are analyzed and compared. The ability of employers to use post-hoc discovery of criminal convictions to justify prior adverse employment actions is discussed, drawing examples from Wisconsin, Minnesota, and Oklahoma. Recently promulgated city and county ordinances prohibiting discrimination are described, as is the limited scope of protection available under existing federal law. The Article concludes that existing protections are both inconsistent and, in many cases, insufficient, and suggests that existing federal laws be amended to bring people with criminal histories more directly within the scope of their coverage.