Can I Be Denied A Job For Pending Charges?

How Criminal History Decisions Can Lead To Race Discrimination Under Title VII 

You apply for a job. You’re perfectly qualified. It’s the right role, the right pay, the right timing—one of those rare opportunities that actually fits. Then something happens. You get charged with something that wasn’t your fault, or something you expect to beat, or maybe something that will end with a fine or diversion. And just like that, the opportunity feels like it’s slipping away. 

Now you’re not thinking about the job—you’re thinking about whether the employer is going to find out. And if they do, whether that’s the end of it. 

For many employees, that fear is not just about losing a job—it raises concerns about wrongful termination, retaliation, and whether the employer is using pending charges as a reason to deny an opportunity because of race discrimination. 

That fear is justified. Race discrimination is real, and employers do run background checks. They ask questions. And many will look at pending criminal charges and decide you are not worth the risk. Under employment law, they are often allowed to do that. 

But not always. 

This is especially true when criminal history intersects with race discrimination. Courts and the Equal Employment Opportunity Commission (“EEOC”) have long recognized that using arrests or pending charges can disproportionately impact Black employees and other protected classes, which means what looks like a neutral hiring decision can actually raise serious employment discrimination concerns. 

Here’s the line most employees don’t see: the law does not protect you from unfair decisions. It protects you from discrimination. That means an employer can make a harsh decision—even a wrong one—without violating Title VII of the Civil Rights Act of 1964. 

So when does it cross the line? 

An employee claiming failure to hire has to prove more than “they used my charges against me.” The law requires proof that the employer used those charges because of race, or that the practice creates a measurable, provable impact on a protected class. 

That is a much higher bar than most people realize. 

Because an employer can point to pending charges and call it judgment. The question is whether that judgment is real—or just a cover. 

Legal Takeaway

What Is The Difference Between Disparate Treatment And Disparate Impact? 

There are two ways an employee can prove race or other forms of employment discrimination under Title VII: disparate treatment and disparate impact. They are fundamentally different and confusing them is one of the most common reasons cases fail. 

This distinction becomes critical in cases involving criminal history, because what appears to be a neutral decision about pending charges can actually function as race discrimination if it is applied unevenly or disproportionately affects a protected class. 

Disparate treatment is intentional discrimination. The question is whether the employer treated the employee differently because of race. In a failure to hire case, the employer will usually point to a reason—like pending charges—and the issue becomes whether that reason is real or just a cover. That is where pretext comes in. If the employer applies the rule inconsistently, treats other employees differently, or shifts its explanation, that is where discrimination begins to show. 

Disparate impact does not require intent. Instead, it focuses on policies that appear neutral but disproportionately harm certain employees. When an employer relies on something like criminal history, the question is whether that practice creates a measurable disparity tied to the employer’s hiring process. That requires proof, not just a belief that the policy feels unfair. 

The distinction is critical. Disparate treatment is about unequal treatment of an employee. Disparate impact is about a policy that creates a pattern of harm. In cases involving pending charges, choosing the right theory—and proving it correctly—is often the difference between a strong employment discrimination claim and one that gets dismissed. 

Practical Tip: If your concern is how you were treated, focus on inconsistencies in the employer’s explanation. If your concern is a policy, you will need proof that it creates a real and measurable disparity. 

Best Race Discrimination Lawyer Blogs on Point: 

• What Is Disparate Treatment? 

• What Is Disparate Impact Discrimination? 

• Who Is A Similarly Situated Employee For Disparate Treatment Discrimination Claims? 

Can Pending Charges Be Used To Deny Me A Job? 

Yes—but not through blanket rules. 

The EEOC has warned that policies excluding employees based on criminal history or pending charges can violate employment law because they often create a disproportionate impact on minority employees. Employers are expected to make individualized assessments, considering the nature of the offense, how recent it is, and whether it relates to the job. The decision must be job-related and consistent with business necessity—not based on assumptions or stereotypes. 

The reason for that guidance is rooted in race discrimination. Data has consistently shown that criminal history screening can disproportionately exclude Black employees, which is why Title VII requires employers to justify these decisions carefully rather than rely on assumptions. 

In some cases, this can function like being wrongfully fired before you even start—what employment law recognizes as a failure to hire. 

That is the theory. The cases show how it works in practice. 

In Matthews v. Runyon, 860 F. Supp. 1347 (E.D. Wis. 1994), a Black employee brought disparate treatment and disparate impact claims after being denied a USPS position. He had strong test scores but also prior convictions, pending weapons-related charges, and a weak work history. He claimed he was labeled a “criminal” and not given a real chance to explain. The employer selected other candidates, including two Black applicants, and the court upheld the decision, finding it was based on comparative qualifications and safety concerns—not race discrimination. Matthews, 860 F. Supp. at 1359–60. 

In Craig v. Department of Health, Education & Welfare, 508 F. Supp. 1055 (W.D. Mo. 1981), a Black employee was forced to resign after a report that she had pleaded guilty to possessing a stolen government check. At the same time, checks were missing from her workplace, though there was no evidence linking her to the thefts. She offered to take a lie detector test, but the employer refused and forced her resignation just before she gained additional protections. The court acknowledged she was “probably unjustly treated,” but held that she failed to prove race discrimination. It found the employer’s concern about dishonesty in a job involving checks was legitimate and that her white comparator was not similarly situated. Craig, 508 F. Supp. at 1057–58. 

In Baker v. United States, 131 Fed. Cl. 62 (2017), an employee alleging race discrimination and retaliation lost a job offer after being charged with serious violent offenses. The employer withdrew the offer based on suitability standards requiring employees to be free of disqualifying charges. The court upheld the decision, finding the employer’s reliance on pending felony charges and the employee’s incarceration justified the failure to hire. Baker, 131 Fed. Cl. at 65–66. 

And in Diamond v. United States, 649 F.2d 496 (7th Cir. 1981), the court recognized that even dismissed charges can affect employment opportunities, highlighting how criminal records can follow an employee long after a case is resolved. Diamond, 649 F.2d at 498–99. 

These cases show the real rule. 

Employers can consider pending charges. But when those decisions disproportionately exclude Black employees or are applied more harshly to a protected class, they can become race discrimination under employment law. 

That is where discrimination begins. 

Practical Tip: The issue is not your charges—it is whether the employer treated your protected class differently. If employees outside your race are given more flexibility, more explanation, or more second chances, that is where discrimination begins. 

Best Wrongful Failure To Hire Attorney Blogs on Point: 

• Sixth Circuit Torches District Court Judge Who Held Calling Employees “Monkeys” Is Not Racist 

• Can A Job Reject Me Because I Was Charged But Not Convicted Of A Crime? 

• Can My Employer Discredit My Claims By Using Alleged Criminal Activity Of Which I Was Never Convicted? 

What’s The Best Way To Figure Out If I Have A Claim For Race Discrimination Or Wrongful Failure To Hire? 

The best way to figure out if you have a claim is to have an experienced employment lawyer evaluate the facts—not just rely on what the employer told you. 

That is particularly true in cases involving criminal history, where what appears to be a neutral hiring decision may actually mask race discrimination against a protected class. 

Because employers do not explain discrimination. 

They point to neutral reasons. Pending charges. “Better candidates.” What they do not tell you is whether they applied those standards the same way to every employee, or whether someone outside your protected class was treated differently. 

At Spitz, The Employee’s Law Firm, we focus on uncovering that difference. We analyze whether an employer’s explanation holds up and whether the decision reflects race discrimination, retaliation, or wrongful termination under employment law. 

Spitz is one of the best firms in the country dedicated to employee rights, with the resources and experience to take on employers and win. We offer free consultations and a no-fee guarantee. 

If something about the decision does not sit right, trust that instinct. Talk to an employment lawyer who knows how to turn that instinct into a case. 

Frequently Asked Questions

Employment Lawyer Disclaimer 

This employee rights and workplace discrimination blog provides general information about employment law, including failure to hire, wrongful termination, race discrimination, retaliation, and employment discrimination. It is not legal advice. You should consult with a qualified attorney or employment lawyer for advice specific to your situation. No promises are made. This blog is a legal advertisement and does not create an attorney-client relationship.