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Causes of Action for Criminal History Discrimination in New Jersey

Criminal history can be one of the biggest stumbling blocks in the search for a job. Steady employment is a critically important factor in returning to normal life after a criminal conviction. Many employers, however, do not want to hire anyone with a criminal record, even if the specific details of a job applicant’s history would not affect the job they want to do. New Jersey’s Opportunity to Compete Act (OTCA) states that employers may not ask about criminal history until later in the hiring process. It does not offer as much protection for job applicants as similar laws in other states and cities. At the federal level, discrimination based on criminal history could be unlawful in certain circumstances. A New Jersey employment attorney can help you explore your options if you have experienced this kind of discrimination.

The OTCA only offers limited protection for job applicants with criminal records. It does not restrict how employers may act upon criminal history information once an applicant has made it past the initial stages of the hiring process. If an employer violates the statute, it does not expressly state that a job applicant may file a lawsuit for damage. Instead, it states that the only remedy for a violation is a civil penalty paid to the state.

The Third Circuit Court of Appeals considered a criminal history discrimination claim brought under the OTCA in a 2020 decision. The decision is one of the few to address criminal history discrimination in New Jersey, but it sheds little light on whether the OTCA allows private causes of action.

In addition to the OTCA claim, the plaintiff had alleged criminal history discrimination under Title VII of the Civil Rights Act of 1964. The district court dismissed his Title VII claim, finding that “having a prior criminal conviction was not a protected status.” The court then dismissed his OTCA claim because, without any claim under federal law, it no longer had supplemental jurisdiction. The Third Circuit affirmed the dismissal of the OTCA claim on purely procedural grounds.

While the court held that criminal history is not a protected class under Title VII, the Equal Employment Opportunity Commission (EEOC) has addressed how this type of discrimination could still be unlawful. It issued a guidance document in 2012 that discussed how the use of arrest and conviction records could constitute discrimination on the basis of a protected class like race, color, national origin, or sex.

Disparate treatment discrimination could occur, for example, if an employer refuses to hire job applicants of one race because of criminal history, but does not hold applicants of a different race to the same standard. The use of criminal history could also lead to disparate impact discrimination, which can be more difficult to identify.

The Fair Credit Reporting Act (FCRA) also offers some protection with regard to employers’ use of criminal history information obtained from credit reporting agencies. Employers must get a job applicant’s permission before requesting a credit report. If they intend to take an adverse action based on information in the report, they must notify the applicant and provide them with a summary of their rights. Job applicants may file suit for both willful and negligent violations.

If you have questions or need help with a dispute involving an employer in New Jersey or New York, the knowledgeable and skilled employment attorneys at the Resnick Law Group are here to help. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation.

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