FREE ESSAY ON USING ARREST RECORDS IN HIRING

USING ARREST RECORDS IN HIRING

The Supreme Court's 1966 Miranda ruling providing for "the right to remain silent" is now
a well-known phrase thanks to American mass media and, especially, popular television
police dramas. However, not nearly as well known is, that for better or worse, this right
can also be extended to the workplace. The topic of this paper is to examine the legality
and issues involved with regard to questioning applicants during the hiring process about
their arrest and conviction records.
Discrimination occurs at all levels of society involving many types of people for various
reasons. In the 1960's a populist movement in the United States raised national awareness
of civil rights as an issue in American society, culminating in 1964 with landmark
legislation. The Civil Rights Act of 1964 dramatically altered the landscape that had
permitted discrimination to occur in the United States of America upon the basis of an
indicidual's race, color, religion, sex and national origin. However, landscapes do not
change overnight. American society and its employers have been forced to revise their
hiring, selection, promotion, and termination employment practices in order to conform to
Title VII. 
The Equal Employment Opportunity Commission (EEOC) was created to enforce adherence to
the Act by employers and promote the practice of observing Title VII provisions in the
workplace. The EEOC has developed administrative guidelines which federal agencies and
employers must follow to remain in compliance with Title VII. In cases where those
guidelines are not followed, the EEOC may bring suit in federal court against the
employer in question. One such guideline, and the topic of this paper, involves
pre-employment inquiries. 
The EEOC's pre-employment inquiry guidelines are designed to assist employers in
identifying what types of questions are permissible and which should be avoided during
the pre-offer or hiring stage. For example, EEOC guidance suggests that comments made
during the hiring process by employers regarding the nature of an applicant's surname
should be avoided. Such questioning may violate the national origin protection of Title
VII and could be regarded as discriminatory.1 Similarly, questions "about job-related
injuries or workers' compensation history are prohibited at the pre-offer stage."2 On the
other hand, many permissible applicant questions do exist, and the EEOC does not restrain
employers from asking them. These range from inquiries regarding past applicant
performance relating to job functions and work attendance habits to past or present
illicit drug use. The list of permissible questions is not exhaustive.
Perhaps not surprisingly, employers do not always welcomed these guidelines. Some believe
that certain EEOC guidance policies do not reflect a practical application of the
principles of Title VII and claim that the EEOC "goes way too far"3 in its requirements
for them to be considered reasonable. In one controversial interpretation, "the Equal
Employment Opportunity Commission's position is that an employer is precluded by [EEOC
interpretation of] 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."4 Such a stance on the part of the EEOC places employers in somewhat of a
double bind so that "every stage in the hiring process can subject the employer to legal
liability, including discrimination claims [and] negligent hiring."5 We now turn our
attention o the subject of discrimination in employment hiring.
Discriminatory treatment at the pre-offer stage of hiring generally falls into one of two
categories: disparate treatment and disparate impact. Disparate treatment can be defined
as treating some people less favorably than others because of certain factors. Disparate
impact involves practices that fall more harshly on one group than another and cannot be
justified by business necessity.6 Race, color, religion, creed, sex, age, marital status,
national origin, mental or physical disability, veteran status, or sexual orientation
represent some of the reasons job applicants are subjected to discrimination. Note, that
not all of these factors are legally protected from discrimination during the hiring
process. The legal protection would depend upon various applicable state or federal law
and the individual circumstances of the case.
Because of it's disparate impact upon minorities, questioning an applicant about his or
her arrest record has been determined to be a discriminatory practice by the EEOC. Many
facts support this claim since it is minorities who are arrested in numbers
disproportionate to their population representation within the general population.
According to 1998 US Census data, while minorities total 28.7% of the US population, they
account for nearly 34% of the all arrests.
Figure 1: 1998 US Population Distributions by Race
In addition, figures for the total number of national arrests during 1998 showed 66% of
the arrestees were white while 32% were black; yet blacks constitute only 12.7% of the
population. (US Census Data)
Figure 2: 1998 US Arrest Distributions by Race
Furthermore, Native Americans have consistently been arrested at approximately three
times the Black rate and ten times the White rate, according to age-adjusted figures for
1950-1968.7 Such startling disparity in minority arrests with respect to the white
majority clearly make a case for disparate impact.
Proponents of prohibiting employers from asking applicants about their arrest records
hold that the danger of disparate treatment of individuals also buoys the need for the
current EEOC stance. They argue that questioning applicants about their arrest records,
and basing any hiring decision upon that data, posses a greater risk for discriminatory
abuse by employers than providing any protection against hiring dangerous employees. The
logic behind this position is based upon the observation that arrests are not equivalent
to convictions and cannot, therefore, automatically be assumed to establish an individual
as an employment risk. "Over 40% of every 100 individuals who are arrested for felonies
are not prosecuted or have their cases dismissed at first appearance (United States
Department of Justice, 1987, in Miller, 1997). So, UCR [Uniform Crime Reports] arrest
statistics tend to create myths about who is dangerous and guilty."8 
Employer regulatory responsibilities are many these days, and just as employers must
avoid discriminatory hiring practices, so too must they protect themselves against
negligent hiring. These seemingly contradictory requirements-to properly investigate
employees at the pre-offer stage to avoid negligent hiring while at the same time
prohibiting employers from receiving and considering certain pertinent data, such as
arrest records-places employers in somewhat of a double-bind. Perhaps adding to the
confusion, some state laws actually require employers to conduct background checks for
certain positions.9 These scenarios usually involve employees who provides home health
services or work in public education school systems.
If an employee commits an illegal act in the performance of his or her job functioning, a
reasonable investigation duty standard is widely believed to protect employers from legal
liability with respect to negligent hiring. Generally the law requires that employers
have a duty to make a reasonable investigation of an applicant's fitness before hiring.10
This is done to establish the likelihood of an applicant committing illegal acts, which
could reasonably have been predicted through a simple background check. "The extent of
[this duty] may vary with the circumstances. For jobs in which an employee will have
access to people's homes or to sensitive information, a criminal records check should be
conducted."11 Failure to conduct background checks could result in liability and
penalties in catastrophic amounts for employers. 
Questioning applicants about convictions is not an altogether different matter for the
EEOC or employers. The EEOC has interpreted the provisions of Title VII and provided
guidance for their use as well. Convictions differ in nature from arrest records in that
a conviction has resulted from due process, which has presumably established an
individual's guilt in regard to commission of a crime. Accordingly, questions regarding
applicant convictions and using them to make hiring decisions are treated differently by
employers based upon EEOC guidelines and applicable state laws.
While EEOC and state requirements do make some allowances for the differing nature of
convictions, statistics like those for arrests, present reasons for concern by the EEOC
because of the potential for disparate treatment and impact. According to the UCR, of the
nearly 15 million arrests for all offenses in the United States in 1998, there was a
total of 2 million felony convictions in state or federal courts12. African Americans
make up roughly 47% of those convicted for felonies in state courts.13
Figure 3: US State Court Conviction
Source: FBI 1998 Uniform Crime Report
Alarmingly these statistics are steadily on the rise, and so too will the degree of
disparate impact cases if employers are permitted complete freedom to make hiring
decisions based merely on the existence of a conviction. Indeed, that a person had an
arrest and conviction history is not an automatic bar to employment, the EEOC has said.14
For this reason, the EEOC has declared that an arrest and conviction history is not an
automatic bar to employment.
The EEOC holds that employers may ask applicants about his or her conviction history at
the pre-offer stage but can only consider the conviction in making a hiring decision to
the extent that the conviction "bear[s] some relationship to the job in order to
constitute a sufficient reason not to hire."15 "For example, a bus company's refusal to
hire a protected class applicant with a single recent DUI conviction would be justified
because the conduct underlying the arrest, driving while intoxicated, is clearly related
to the safe performance of the duties of a bus driver, and occurred fairly recently."16 
The tightrope employers must walk to balance their adherence to Title VII against
protecting themselves from hiring dangerous employees promises to continue to create a
complicated hiring process for employers. But realities within our culture and society
clearly demonstrate a need for protecting many from being disenfranchised from the
workforce by arbitrary and systemic practices of discrimination in employment and the
EEOC guidance makes the attempt. 
American public policy currently dictates that employers must legally observe the
fundamental civil rights of potential applicants while at the same time refrain from
negligent hiring of dangerous employees or else face liability exposure, costly
litigation, and potentially catastrophic financial penalties. The attempt on the part of
public policy makers, policy enforcers, and employers to strike a balance between at
times competing obligations will continue to challenge all concerned.
Footnotes
1 "Employment Law for Business 2nd Edition" Bennett-Alexander, Pincus. Irwin/McGraw Hill.
1998. p. 305.
2 "Hiring Without Lawsuits: Remaining Within The Shrinking Boundaries of What Is
Appropriate and Legal" Law Firm of Meckler Bulger & Tilson Web Page. Downloaded 8 Feb.
2000. p. 12. (http://www.bmbt.com/pubs/articles/hiring2.htm)
3 David Andrew Price (Washington Legal Foundation), English-Only Rules: EOC Has Gone Too
Far, USA Today, March 28, 1996 http://www.ncpa.org/pd/affirm/pdaa/pdaa17.html 
4 "Employment Interview Guidelines: Research Notes -- Arrest Records in Employment." The
Catholic University Of America. Downloaded February 29, 2000. p. 1
(http://counsel.cua.edu/Employ/Arrest_Records.htm.)
5 "Hiring Without Lawsuits: Remaining Within The Shrinking Boundaries of What Is
Appropriate and Legal" Law Firm of Meckler Bulger & Tilson Web Page. Downloaded 8 Feb.
2000. p. 1. (http://www.bmbt.com/pubs/articles/hiring2.htm)
6 "Grievance Policy And Procedures." University Of Massachusetts Amherst Equal
Opportunity & Diversity Office. Downloaded 17 March 2000.
http://www-nss.oit.umass.edu/eod/grievance.html
7 "Alcoholism and Native Americans." John M. Stevenson. Downloaded 5 March 2000. p.
1.http://www.geocities.com/Athens/Forum/9235/Alcohol.html
8 "The Construction and Reinforcement of Myths of Race and Crime". Matthew Robinson,
Ph.D., Appalachian State University. Downloaded 10 March 2000. p.
http://www.appstate.edu/~robinsnmb/race.htm
9 "Combating Negligent Hiring Claims." Business Owner's Toolkit Web Site, CCH INC. 6 Feb
2000. p. 1. (http://csi.toolkit.cch.com/text/P05_1515.asp)
10 Ibid. p. 1.
11 Ibid. p. 1.
12 FBI 1998 Uniform Crime Report http://www.fbi.gov/ucr/Cius_98/98crime/98cius22.pdf
13 "The Construction and Reinforcement of Myths of Race and Crime". Matthew Robinson,
Ph.D., Appalachian State University. Downloaded 10 March 2000. p.
http://www.appstate.edu/~robinsnmb/race.htm
14 "Combating Negligent Hiring Claims." Business Owner's Toolkit Web Site, CCH INC. 6 Feb
2000. p. 1. (http://csi.toolkit.cch.com/text/P05_1515.asp)
15 "Case Study - Using Arrest Records" Business Owner's Toolkit Web Site, CCH INC.
Downloaded 28 Feb 2000. p. 1.
"Combating Negligent Hiring Claims." Business Owner's Toolkit Web Site, CCH INC. 6 Feb
2000. p. 1. (http://csi.toolkit.cch.com/text/P05_1515.asp)
16 "Case Study - Using Arrest Records" Business Owner's Toolkit Web Site, CCH INC.
Downloaded 28 Feb 2000. p. 1.http://csi.toolkit.cch.com/text/P05_1615.asp
Bibliography
References
1. "Employment Law for Business 2nd Edition" Bennett-Alexander, Pincus. Irwin/McGraw
Hill. 1998
2. 42 U.S.C. ?2000e 1-16
3. "Hiring Without Lawsuits: Remaining Within The Shrinking Boundaries of What Is
Appropriate and Legal" Law Firm of Meckler Bulger & Tilson Web Page.
(http://www.bmbt.com/pubs/articles/hiring2.htm) 8 Feb. 2000.
4. Rosemary Alito. New Jersey Employment Law (2nd Ed.). Newark: New Jersey Law Journal,
1999.
5. "Limitations On An Employer's Ability To Consider Arrest Or Conviction Records Of A
Job Applicant." Law firm of Donahue, Gallagher, Woods & Wood web page.
(http://www.donahue.com/HTML/frames/resour/1998_f.html) 10 Feb. 2000.
6. "Combating Negligent Hiring Claims." Business Owner's Toolkit Web Site, CCH INC.
(http://csi.toolkit.cch.com/text/P05_1515.asp) 6 Feb 2000.
7. "Employment Interview Guidelines: Research Notes -- Arrest Records in Employment." The
Catholic University Of America. http://counsel.cua.edu/Employ/Arrest_Records.htm. May 21,
1998
8. "Alcoholism and Native Americans." John M. Stevenson.
http://www.geocities.com/Athens/Forum/9235/Alcohol.html
9. "Key Crime & Justice Facts at a Glance" U.S. Department of Justice Bureau of Justice
Statistics January 21, 2000 http://www.ojp.usdoj.gov/bjs/glance.htm
10. The Construction and Reinforcement of Myths of Race and Crime, Matthew Robinson,
Ph.D., Appalachian State University, Boone, North Carolina 28608 
http://www.appstate.edu/~robinsnmb/race.htm
11. FBI 1998 Uniform Crime Report http://www.fbi.gov/ucr/Cius_98/98crime/98cius22.pdf
12. David Andrew Price (Washington Legal Foundation), English-Only Rules: EEOC Has Gone
Too Far, USA Today, March 28, 1996
http://www.ncpa.org/pd/affirm/pdaa/pdaa17.html
13. "Grievance Policy And Procedures." University Of Massachusetts Amherst Equal
Opportunity & Diversity Office. Downloaded 17 March 2000.
http://www-nss.oit.umass.edu/eod/grievance.html