We hear it over and over again: one brush with the law and it is over. Employers will reject you out of hand, even if your criminal record is decades old, regardless of what you've done since, and without regard to whether the crime has anything to do with the job.

But in Pennsylvania, this type of discrimination is illegal. Under Pennsylvania's Criminal History Record Information Act (CHRIA) an employer may use criminal histories only ”in accordance with this section,” 18 Pa.C.S. Section 9125(a). The section says, first, that an employer may consider felony and misdemeanor convictions only “to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied.” This means that an employer must make an individualized determination as to whether the conviction is related to the employment. It also means that summary offenses, arrests or charges resulting in an accelerated rehabilitative disposition may not be considered at all in an employment decision.  See, e.g., Foxworth v. Pennsylvania State Police, 228 F. App'x 151, 154-55 (3d Cir. 2007) and Commonwealth v. D.M., 548 Pa. 131, 137 n.2 (1997). CHRIA also requires that “the employer shall notify in writing the applicant if the decision not to hire the applicant is based in whole or in part on criminal history record information.” This provision is intended to give the applicant an opportunity to explain any criminal history or correct any errors on the public record. The law has teeth: applicants can recover damages and attorney fees if they prevail.

These protections reflect the research about people with criminal histories. The more time that has passed since the conviction, the less useful a conviction is to predict future criminal conduct. After the passage of enough time, the likelihood that someone with one conviction will reoffend is no greater than the likelihood that someone with no record will commit an offense. See, e.g., Alfred Blumstein & Kiminori Nakamura, “Redemption in the Presence of Widespread Criminal Background Checks,” 47 Criminology 327 (2009). Research also suggests employers do not incur a significant risk of liability when hiring returning citizens. Many employers report that returning citizens are highly motivated to keep their jobs and therefore are among the best employees, with the best retention rates and higher rates of productivity.

Despite these strong protections, many Pennsylvanians are turned away from employment whenever an employer learns of a criminal record. Nearly 75% of returning citizens are still unemployed a year after release from prison. Neither the applicants nor the employers themselves know about the law and even fewer have the resources to enforce it when they are turned away. Consequently, there is very little case law under CHRIA.

At the Public Interest Law Center, we aim to turn this around because this discrimination is costly to the individual and to society. A job, and the income that comes with it, is a critical step toward economic stability. Researchers have pointed to employment as the single most important factor for reducing recidivism. The issue also has significant racial dimensions: as people of color are disproportionately arrested and charged, they disproportionately face a lifetime of discrimination, years after they have served their time. We want to make sure both applicants and employers understand the law; and if employers violate that law, we want both applicants and employers to understand there are consequences. We are working toward meeting this goal with presentations to employers and applicants and by filing cases against large employers that disregard the law.

We filed our most recent case, along with lawyers from Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, against Montgomery County on behalf of Kara Gannon, a 56-year-old woman with a solid work history and years of experience in social services in Gannon v. Montgomery County, No. 2019-05642, (C.P. Mont.) Gannon applied for two caseworker positions with Montgomery County and in each instance was rejected only after the county learned she had two unrelated misdemeanors from eight and 10 years ago. Gannon first applied for a caseworker position with the county's Office of Children and Youth in May 2018. After a successful interview in which the interviewers told her she was qualified for the position, the county invited her to move to the final stage of the hiring process. But once Gannon voluntarily submitted her records, the county stopped communicating and finally told Gannon she would not be getting the job. At one point a county hiring manager told her that her criminal history “was not helping” and “no one in Montgomery County Children and Youth has a criminal record.” Later the county claimed in writing that she was rejected because she had not followed “formal guidelines” in the application process. In November 2018, Gannon interviewed for and was offered a caseworker position with the county's Department of Aging. But again, after she submitted her records, the county stopped communicating and ultimately claimed that the position had been “retracted” because it was “not required at this time.”

We allege that through these actions, the county violated CHRIA because it unlawfully made two employment decisions based on misdemeanors that were unrelated to the positions at issue. We further allege that the reasons provided by the county in writing for rejecting her applications were pretextual; and that the true reason was the one given to Gannon over the phone: she was not hired because of her criminal records. Our complaint seeks damages, punitive damages, attorney fees and injunctive relief enjoining the county in the future from using criminal histories in violation of CHRIA.

Our case, if successful, stands to benefit thousands of workers. Montgomery County is the eighth largest employer in the third-most populous county in Pennsylvania. Holding the county responsible for wrongfully denying an applicant employment based on her criminal record, and requiring the county to adopt new policies to ensure compliance with CHRIA, will impact workers not just in that county but will surely cause other municipalities to scrutinize their own hiring policies.

But of course a win is not certain. The county has already argued in preliminary objections that it is immune from punitive damages, a position that the court accepted without opinion. We are moving forward with discovery.

Jennifer R. Clarke is the executive director of the Public Interest Law Center. She can be reached at [email protected].