Employment

 

Interview Guidelines

 

Research Notes -- Arrest Records in Employment

 

The Equal Employment Opportunity Commission’s position is that an employer is precluded by Title VII of the Civil Rights Act of 1964 from asking a potential employee about arrest records.  The rationale behind this position is that arrests do not prove guilt and that screening out applicants with arrest records has an adverse impact on minorities.  See Fair Employment Practices Manual; EEOC Guide to Pre-Employment Inquires, Lab. Rel. Rep. BNA, No. 695 at 443:67 (1995).

 

For proposition that an employer may use arrest records in hiring and promotion, see Batiste v. Burke, 746 F.2d 257 (5^th Cir. 1984).

 

For the proposition that an employer may not use arrest records in a hiring decision, see Gregory v. Litton Sys., Inc., 316 F. Supp. 4041 (C.D. Cal. 1970).

 

Law Review Cites:

"Although no federal statute prohibits an employer from asking about a prospective employee’s arrest record, forty-one states restrict or prohibit employers’ inquiries about this subject.  State legislatures worry that an affirmative response to the arrest record inquiry will disproportionately impact certain groups of protected individuals.  The logic is that because arrests do not necessarily establish guilt, the inquiry is improper and may be discriminatory."   Rochelle B. Ecker, To Catch a Thief:  The Private Employee’s Guide to Getting and Keeping an Honest Employee 63 UMKC L. Rev. 251 at 255 (1994).

 

"Certain statutes permit only the use of conviction records, and not of arrests, in reaching an employment decision, since arrests do not reflect the individual’s guilt.  Other states permit the use of arrest records, but limit their application."  Janet Goldberg, Employees with Mental and Emotional Problems, 24 Stetson L. Rev. 201 at 222 (1994).

 

Also see:

Note:  Employer Liability Under the Doctrine of Negligent Hiring:   Suggested Methods for Avoiding the Hiring of Dangerous Employees, 13 Del. J. Corp. L. 501, Section V-A.

Stephen Beaver, Beyond the Exclusivity Rule: Employer Liability for Workplace Violence, 81 Marq. L. Rev. 103 at 114 (1997).

Tanja Lueck Thompson, Weapons in the Workplace, 28 Mem. St. U. L. Rev. 281 at 302 (1997).

 

created: May 21, 1998
links updated 6/10/08 rab