October 31, 2011:  Arrest Records As a Bar to Employment

A common screening device used by employers during hiring is the criminal background check.  An employer’s use of criminal record information during its selection process may violate Title VII, however.  For example, automatic exclusions from employment based on frequent or recent arrests may disproportionately exclude African-Americans and Hispanics, thereby creating a disparate impact on those minority groups.

Employers should only use criminal record information in a manner that is job related and consistent with business necessity.  For exclusions based on convictions, the legal standard is that the criminal conduct be recent enough and sufficiently job-related to be predictive of performance in the position sought.  In a recent informal opinion letter, the EEOC suggested that convictions more than seven years old should not normally be considered by an employer.

The use of arrest records as a bar to employment will always be viewed with suspicion by the EEOC.  This is because the EEOC believes that arrests are not reliable evidence that a person has actually committed a crime.   An employer may, however, deny employment based on conduct underlying an arrest where that conduct indicates that the applicant would be unfit for the position in question.

The EEOC recommends that employers carefully evaluate whether an arrest record accurately reflects the applicant’s conduct.  An employer should give
the applicant a reasonable opportunity to dispute the validity of an arrest
record to ensure that it is using accurate information to make its hiring decision.  According to the EEOC’s published Guidance on this issue, the employer should not perfunctorily “allow the person an opportunity to explain” and ignore the explanation where it could easily be verified by a follow-up phone call to a previous employer or the police department.

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