Summary
It
is a common belief that the Equal Employment Opportunity Commission
(EEOC) Prohibits the use of arrest
and misdemeanor information in the hiring process. As is discussed below,
this is not the case.
What the
EEOC
does prohibit is the use of arrest and misdemeanor information to exclude an
applicant from employment without
considering the four factors below.
Furthermore, what many employers do not realize is that the
EEOC
also requires that they consider the last three of the following four
factors in determining whether even an applicant’s felony conviction is
grounds for denying employment.
1.
Did the applicant actually commit the offense?
2.
What is the nature and gravity of the offense?
3.
How long ago was the offense?
4.
What is the nature of the job being applied for?
The EEOC also states that
employers should not ask applicants about arrests which have not lead to
convictions, since such questions may have a “chilling effect” upon
minorities and discourage them from applying for a job.
This does not prohibit employers from learning about these arrests from
court records.
EEOC N-91 5.061
(Automatically Cancelled in 180 Days)
Date 9/7/90
1.
SUBJECT: Policy Guidance on the Consideration of Arrest Records in
Employment Decisions under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. ~ 2000e et seq. (1982).
2.
PURPOSE: This policy guidance sets forth the Commission's procedure for
determining whether arrest records may be considered in employment
decisions.
3.
EFFECTIVE DATE: SEPTEMBER 7, 1990
4.
EXPIRATION DATE:~ As an exception to EEOC Order 205.001, Appendix B,
Attachment 4, ~ a (5), this Notice will
remain in effect until rescinded or superseded.
5.
ORIGINATOR: Title VII/EPA Division, Office of the Legal Counsel.
6.
INSTRUCTIONS: File behind the last Policy Guidance ~ 604 of Volume II of the
Compliance Manual.
7.
SUBJECT MATTER:
I. ABILITY TO OBTAIN EMPLOYMENT
Legal standards for employment of people with criminal
records are predominately created by state laws. While there is no explicit
federal law, the Equal Employment Opportunity Commission ("EEOC") has ruled
that employment policies excluding people based upon arrests of convictions
unrelated to the job sought may violate Title VII of the Civil Rights Act of
1964 because of their disproportionate impact on minorities, who are
arrested and convicted at a significantly higher rate than their percentage
in the population. (11)
Under the EEOC's Title VII guidelines, employers may not
exclude people based upon arrests that did not lead to conviction unless
there is a business justification. (12) A "business justification" must show
that the applicant engaged in the conduct for which he or she was arrested,
and that the conduct is both job-related and fairly recent. The EEOC
guidance requires employers to give applicants a chance to explain their
arrest records before they are disqualified from employment. (13)
Similarly, the EEOC has stated that an employer only may
exclude a person because of a criminal conviction if there is a business
necessity. (14) To establish business necessity, the employer must consider:
1) the nature and gravity of the offense(s); 2) the time that has elapsed
since the conviction and/or completion of the sentence; and 3) the nature of
the job held or sought. (15) For example, business necessity exists where
the applicant has a fairly recent conviction for a serious offense that is
job-related.
I.
Introduction
The question addressed in this policy guidance is 'to what extent may arrest
records be used in making employment decisions?"
The Commission concludes that since the use of arrest records as an absolute
bar to employment has a disparate impact on some protected groups, such
records alone cannot be used to routinely exclude persons from employment.
However, conduct which indicates unsuitability for a particular position is
a basis for exclusion. Where it appears that the applicant or employee
engaged in the conduct for which he was arrested and the conduct is job
related and relatively recent, exclusion is justified.
The analysis set forth in this policy guidance is related to two previously
issued policy statements regarding the consideration of conviction records
in employment decisions:
'Policy Statement on the Issue of Conviction Records under Title VII of the
Civil Rights Act of 1964, as amended 42 U.S.C. ~ 2000e et seq. (1982)"
(hereinafter referred to as the February 4, 1987 Statement) and 'Policy
Statement on the use of statistics in charges involving the exclusion of
individuals with conviction records from employment" (hereinafter referred
to as July 29, 1987 Statement).
The February 4, 1987 Statement states that nationally, Blacks and Hispanics
are convicted in numbers which are disproportionate to Whites and that
barring people from employment based on their conviction records will
therefore disproportionately exclude those groups.'
Due to this adverse impact, an employer may not base an employment decision
on the conviction record of an applicant or an employee absent business
necessity.
2 Business necessity
_______________________________
'The July 29 Statement notes that despite national statistics showing
adverse impact, an employer may refute this prima facie showing by
presenting statistics which are specific to its region or applicant pool. If
these statistics demonstrate that the policy has no adverse impact against a
protected group, the plaintiffs prima facie case has been rebutted and the
employer need not show any business necessity to justify the use of the
policy.
Statistics relating to arrests should be used in the same manner.
2
The policy statements on convictions use the term "business necessity, as
used by courts prior to the Supreme Court's decision in Wards Cove Packing
Co. v. Atonio, 109 S. Ct. 2115 (1989).
In
At~ the Supreme Court adopted the term 'business justification" in place of
business necessity, can be established where the employee or applicant is
engaged in conduct which is particularly egregious or related to the
position in question.
Conviction records constitute reliable evidence that a person engaged in the
conduct alleged since the criminal justice system requires the highest
degree of proof ("beyond a reasonable doubt") for a conviction.
In
contrast, arrests
alone are not reliable evidence that a person has actually committed a
crime. Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957) ("[t] The
mere fact that a [person] has been arrested has very little, if any,
probative value in showing that he has engaged in misconduct.")
Thus, the Commission concludes that to justify the use of arrest records, an
additional inquiry must be made.
Even where the conduct alleged in the arrest record is related to the job at
issue, the employer must evaluate whether the arrest record reflects the
applicant's conduct.
It
should, therefore, examine the surrounding circumstances, offer the
applicant or employee an opportunity to explain, and, if he or she denies
engaging in the conduct, make the follow-up inquiries necessary to evaluate
his/her credibility.
Since using arrests as a disqualifying criteria can only be justified where
it appears that the applicant actually engaged in the conduct for which
he/she was arrested and that conduct is job related, the commission further
concludes that an employer will seldom be able to justify making broad
general inquiries about an employee's or applicant's arrests.
The following discussion is offered for guidance in determining the
circumstances under which an employer can justify excluding an applicant or
an employee on the basis of an arrest record.
II. Discussion
A. Adverse Impact of the Use of Arrest Records
The leading case involving an employer's use of arrest records is Gregory v.
Litton Systems, 316
F
Supp. 401, 2 EPD n io, 264 (C.D. Gal. 1970), modified on other grounds, 472
F. 2d 631, 5 EPD n
8089 (9'h Cir. 1972). Litton held that nationally, Blacks are arrested more
often than are Whites.
Courts and the Commission have relied on the statistics presented in Litton
to establish a prima facie case of discrimination against Blacks where
arrest records are used in employment decisions.
3
There are, however, more recent statistics, published by the U.S. Department
of Justice, Federal Bureau of Investigation, which are consistent with the
Litton finding.'
It
is desirable to use the most current available statistics.
In
addition, where local statistics are available, it may be helpful to use
them, as the court did in Revnolds v. Sheet Metal Workers Local 102, 498 F.
Supp. 952, 22 EPD 30,739 (D.C. 1980),
affd.. 702 F 2d 221, 25 EPD n 31,7os cD.C. ci, 1981).
In
Revnolds, the court found that the use of arrest records in employment
decisions adversely affected Blacks since the 1978 Annual Report of the
Metropolitan Police of Washington, D.C., stated that 85.5% of persons
arrested in the District of Columbia were nonwhite while the nonwhite
population constituted 72.4% of the total population. 498 F. Supp. at 960.
The Commission has determined that Hispanics are also adversely affected by
arrest record inquiries. Commission Decisions Nos. 77 - 23 and 76 - 03,
but noted that "although we have phrased the query differently in different
cases...the dispositive issue is whether a challenged practice serves, in a
significant way, the legitimate employment goals of the employer," citing,
inter alia, GriqQs v. Duke Power Co., 401 U.S. 424 (1971). 109 S. Ct.
at
2125 - 2126.
3
U·S· v. City Of Chicago, 385 F. Supp. 543, 556 - 557 (N.D. 111. 1974),
adopted by reference, 411
F.
Supp. 218, affd in rel. Dart, 549 F.2d 415, 432 (7'h Cir. 1977); City of
Cairo v. Illinois Fair
Employment Practice Commission, et al., 8 EPD n 9682 (111. App. Ct. 1974);
Commission Decision
Nos. 78 - 03, 77 - 23, 76 - 138, 76 - 87, 76 - 39, 74 - 92, 74 - 90, 74 -
83, 74 - 02, CCH EEOC
Decisions (1983) nn 6714, 6710, 6700, 6665, 6630, 6424, 6423, 6414, 6386 and
Commission
Decision Nos. 72 - 1460, 72 - 1005, 72-094 and 71-1950, CCH EEOC Decisions
(1973) nn 6341,
6357 and 6274 respectively.
4The FBl's Uniform Crime Reporting Program reported that in 1987, 29.5% of
all arrests were of Blacks.
The U.S. Census reported that Blacks comprised 11.7% of the national
population in 1980 and projected that the figure would reach 12.2%
in
1987. Since the national percentage of arrests for Blacks is more than twice
the percentage of their representation in the population (whether
considering the 1980 figures or the 1987 projections), the Litton
presumption of adverse impact, at least nationally, is still valid.
CCH EEOC Decisions (1983) fi'll 671·L and 6598, respectively' However, the
courts have not yet addressed this issue" and the FBl's Uniform Crime
Reporting Program does not provide information on the arrest rate for
Hispanics, nationally or regionally.
As
with conviction records (see July 29,
1987 Statement), the employer may rebut by presenting statistics which are
more current, accurate and i or specific to its region or applicant pool
than are the statistics presented in the prima facie case.
B. Business Justification
If
adverse impact is established, the burden of producing evidence shifts to
the employer to show a business justification for the challenged employment
practice. Wards Cove Packing Co. v.
A
109 S. Ct. 2115, 2126 (1989).7
As
with conviction records, arrest records may be considered in the employment
decision as evidence of conduct which may render an applicant unsuitable for
a particular position.
However, in the case of arrests, not only must the employer consider the
relationship of the charges to the position sought, but also the likelihood
that the applicant actually committed the conduct alleged in the charges.
Gregory v. Litton Systems, 316 F. Supp. 401; Carter
v.
Galla9er, 452 F. 2d 315, 3 EPD fi 8335 (8'h Cir. 1971), Cert. denied 406
U.S. 950, 4 EPD T[ 7818
(1972); Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952; Dozier
v. ChuDka, 395 F.
Supp. 836 (D.C. Ohio 1975); V.S. v. City of Chicago, 411 F. Supp. 218 (N.D.
111. 1974), aff'd. in rel.
e~, 549 F. 2d 415 (7'" Cir. 1977); City of Cairo v. Illinois Fair Employment
Practice Commission e!
~
8 EPD n 9682 (111. App. Ct. 1974); Commission Decisions Nos. 78 - 03, 77 -
231 76 - 138, 76-
87, 76 - 54, 76 - 39, 76 - 17, 74 - 92, 74 - 83, 76 - 03, 74 - 90, 78 - 03,
74 - 25, CCH EEOC
Decisions (1983) nn 6714, 6710, 6700, 6665, 6639, 6630, 6612, 6424, 6414,
6598, 6423, 6400
and Commission Decisions Nos. 72 - 0947, 72 - 1005, 72 - 1460, CCH EEOC
Decisions (1973) nn
6357, 6350 and 6341, respectively.
1. A Business Justification Can Rarely Be Demonstrated for Blanket
Exclusions on the Basis of Arrest Records Since business justification rests
on issues of job relatedness and credibility, a blanket exclusion of people
with arrest records will almost never withstand scrutiny.
Gregory v. Litton Systems, 316 F.
Supp. 401. Litton held that an employer's policy of refusing to hire anyone
who had been arrested "on a number of occasions" violated Title VII because
the policy disproportionately excluded Blacks from consideration and was not
justified by business necessity.
In
Litton an applicant for a position as a sheet metal worker was disqualified
because of his arrest record the court found no business necessity because
the employer had neither examined the particular circumstances surrounding
the arrests nor considered the relationship of the charges made against him
to the position of sheet metal worker.
Since the employer had failed to establish a business necessity for its
discriminatory policy, it was enjoined from basing future hiring decisions
on arrest records.
Accord Carter v. Gallac~her. 452 F. 2d 315 (firefighter); Dozier v. Chupka,
395 F. Supp. 836 (firefighter); City of Cairo v. Illinois Fair Employment
Practice Commission, et al. 8 EPD fi 9682 (police officer).
5
The statistics presented in Decision No. 77 - 23 pertain only to prison
populations in the Southwestern United States.
This data would, therefore, probably not constitute a prima facie case of
discrimination for other regions of the country.
In
fact, there is no case law to indicate whether courts would accept this data
as evidence of adverse impact for arrest records, even for cases arising in
the Southwest, since all arrests do not result in incarceration.
Decision No. 76 - 03 noted that Hispanics are arrested more frequently than
are Whites, but no statistics were presented to support this statement.
6
Cf. EEOC v. Carolina Freight Carriers, 723 F. Supp. 734, 751, 52 EPD a
39.538 (S.D. Fla. 1989) (EEOC failed to provide statistics for the relevant
labor market to prove that trucking company's exclusion of drivers with
convictions for theft crimes had an adverse impact on Hispanics at a
particular job site).
7Under Atonio the burden of producing evidence shifts to the employer, but
the burden of persuasion remains with the plaintiff at all stages of a Title
VII case. 109 S. Ct. at 2116. Atonio thus modifies Grigqs and its progeny.
exclusion of persons with arrest records. Commission Decision Nos. 78 - 03,
76 - 87, 76 - 39. 76 -
17, 76 - 03, 74 - 90, 74 - 25, 72 - 0947, 72 - 1005, CCH EEOC Decisions
(1983) fi'll 6714
(laborer), 6665 (police officer), 6630 (cashier), 6612 (credit collector),
6598 (catalogue clerk), 6423 (uniformed guard commissioned by police
department), 6400 (firefighter), 6357 (line worker) and 6350 (warehouse
worker or driver).
In
several decisions, it appears that the arrest record inquiry was made on a
standard company application which was used by the employer to fill various
positions and there was no mention of any particular position sought.
Commission Decision Nos. 76 - 138,
76
- 54, 74 - 82, 74 - 83, 74 - 02 and 72 - 1460, CCH EEOC Decisions (1983)
71'116700, 6639,
6424, 6414, 6386 and 6341 and Commission Decision No. 71 - 1950, CCH EEOC
Decisions (1973)
fl
6274, respectively. An employer may not routinely exclude persons with
arrest records based on the assumption that an arrest record will prevent an
applicant from obtaining necessary credentials to perform a job without
giving the applicant an opportunity to obtain those credentials.
For example, in Decision 76 - 87, the Commission rejected an employer's
assertion that employees'arrest records might hinder its ability to maintain
fidelity (bond) insurance since it offered no proof to this effect.
Even where there is no direct evidence that an employer used an arrest
record in an employment decision, a pre-employment inquiry regarding arrest
records may violate Title VII. I
it
is generally presumed that an employer only asks questions which he/she
deems relevant to the employment decision. Gregory v. Litton Systems, 316 F.
Supp. at 403 - 404. Noting that information which is obtained is likely to
be used, the court in Litton enjoined the employer from making any
pre-employment inquiries regarding arrests which did not result in
convictions. Id.B
But see EEOC v. Local 638, 532 F. 2d 821 (2d Cir. 1976) (inquiry not
invalidated where there was no evidence that union actually rejected
applicants who had been arrested but not convicted) Jimerson v. Kisco 404 F.
Supp. 338 (E.D. Mo. 1975) (court upheld discharge for falsifying nformation
regarding arrest record on a pre-employment application without considering
the inquiry itself violated Title V11).9
Numerous states have specifically prohibited or advised against
pre-employment inquiries in their fair employment laws due to the possible
misuse of this information.'"
2. The Alleged Conduct Must Be Related to the Position Sought
As
discussed above, an arrest record may be used as evidence of conduct upon
which an employer makes an employment decision.
An
employer may deny employment opportunities to persons based on any prior
conduct which indicates that they would be unfit for the position in
question, whether that conduct is evidenced by an arrest, conviction or
other information provided to the employer.
It
is the conduct, not the arrest or conviction per se, which the employer may
consider in relation to the position sought.
The considerations relevant to the determination of whether the alleged
conduct demonstrates unfitness for the particular job were set forth in
Green v.Missouri Pacific Railroad Co., 549 F. 2d 1158, 1160, 13 EPD fi 11,
579 (8'h Cir. 1977) and reiterated in the February 4, 1987 Statement on
Convictions, page 2:
8
Furthermore, potential applicants who have arrest records may be discouraged
from applying for positions which require them to supply this information,
thus cresting a "chilling effect" on the Black applicant pool.
C~t~gh_I~L,452 F. 2d at 330 - 331, Reynolds v Sheet Metal Workers, Local
102, 498 F. Supp. at 964 n.12, 996 n.13, 967, 973; Commission Decision Nos.
76 - 138, 76 - 87,
76
- 17, 74 - 90, 74 - 25 and 74 - 02, CCH EEOC Decisions (1983) nn 6700, sass,
6612, 6423,
6400, 6386 and Commission Decision Nos. 74 - 1005 and 71 - 1950, CCH EEOC
Decisions (1973)
Ilfi 6350 and 6274, respectively.
Note also that in Walls v. City of Petersburg, 895 F. 2d 188, 52 EPD 'ii
39.602 (4'h Dir. 1990), the court upheld an employer's policy of making an
employment inquiry regarding the arrest records of employees' immediate
family members. The court determined that under Atonio, the plaintiff was
obligated to show not only that Blacks were more likely to have "negative"
responses to this question, but also that the employer made adverse
employment decisions based on such 10 New York, Hawaii, Oregon, Wisconsin,
New Jersey, Ohio, Virginia, District of Columbia, California, Maryland,
Minnesota, Utah, Washington, West Virginia, Arizona, Colorado, Idaho,
Massachusetts, Michigan, Mississippi.
1. the nature and gravity of the offense or offenses;
2. the time that has passed since the conviction" (or in this case,
arrest)...; and
3. the nature of the job held or sought.
See also Carter v. Maloney Trucking and Storage Inc., 631 F. 2d 40, 43, 24
EPD n 31,348 (5'" Cir.
1980) (employer refused to rehire an ex-employee who had murdered a
co-worker, not solely because of his conviction, but because he was a
dangerous person and friends of the murdered man might try to retaliate
against him while he was on the job); Osborne v. Cleland. 620 F.2d 195,
22
EPD 30,882 (8'" Cir. 1980); (employee who had forfeited collateral on a
charge of "sexual procurement" was unfit to be a nursing assistant in a
psychiatric ward); Lane v. Inman, 509 F 2d 184
(5'h Cir. 1975) (city ordinance which prohibited the issuance of taxicab
driver permits to persons convicted of smuggling marijuana was "so obviously
job related" that "it could not be held to be unlawful race discrimination."
irrespective of any adverse impact); EEOC v. Carolina freight, 723 F.
Supp. 734, 52 EPD ~ (S.D. Fla. 1989) (criminal history was related to
position of truck driver who transported valuable property); McCrav v.
Alexander. 30 EPD ~ 33,219 (D. Cole. 1982), affd 38 EPD n 35, 509 (10'" Cir.
1985) (supervisory guard was discharged for killing a motorist, while
off duty,
in a traffic dispute because employer concluded that, despite his acquittal,
the conduct showed poor judgment on the use of deadly force).
Where the position sought is "security sensitive, particularly where it
involves enforcing the law or preventing crime, courts tend to closely
scrutinize evidence of prior criminal conduct of applicants. U.S. v. City of
Chicago, 411 F.
Supp. 218, 11 EPD a 10,597 (N.D. 111. 1976), affd in rel.
Dart, 549 F. 2d 415, 13 EPDn 11,380 (7Lh Cir. 1977), on remand 437 F. Supp.
256 (N.D. 111. 1977)
(applicants for the police department were disqualified for prior
convictions for 'serious" offenses);
Richardson v. Hotel Corporation of America. 332 F. Supp. 519, 4 EPD '117666
(E.D. La. 1971), aBd
mem 468 F. 2d 951, 4 EPD n 7666 (5'" Cir. 1972) (bellman was discharged
after his conviction for theft and receipt of stolen goods was discovered
since bellmen had access to guests' rooms and was not subject to inspection
when carrying packages); Haynie v ChuDka, 17 FEP Cases 267, 271
(S.D. Ohio 1976) (police department permissibly made inquires regarding
arrest records and other evidence of prior criminal conduct). (See Examples
3 and 4).
Even where the employment at issue is not a law enforcement position or one
which gives the employee easy access to the possessions of others, close
scrutiny of an applicant's character and prior conduct is appropriate where
an employer is responsible for the safety and/or well being of other
persons. Os~, 620 F. 2d 195 (8'" Cir. 1975) (psychiatric nursing assistant);
Lane
v.
Inman, 509 F. 2d 184 (taxi driver). in these instances, the facts would have
to be examined closely in order to determine the probability that an
applicant would pose a threat to the safety and well being of others. (See
Examples S and 6).
3. Evaluating the Likelihood that the Applicant Engaged in the Conduct
Alleged
The cases cited above illustrate the job-relatedness of certain conduct to
specific positions. In cases alleging race discrimination based on the use
of arrest records as opposed to convictions, courts have generally required
not only job-relatedness, but also a showing that the alleged conduct was
actually committed.
In
City of Cairo v. Illinois Fair Employment Practice Commission,
e~, 8 EPD fi 9682, the court held that where applicants sought to become
police officers, they could not be absolutely barred from appointment solely
because they had been arrested, as distinguished from convicted. See also
Commission Decision No. 76 - 87, CCH EEOC Decisions
11
But see EEOC v. Carolina Freight Carriers, 723 F. Supp. at 753 (court upheld
trucking company's lifetime bar to employment of drivers who had been
incarcerated for theft crimes since EEOC did not produce evidence that a 5 -
10 year bar would be an equally effective alternative).
Note also that the court in Carolina Freight specifically rejected the
Eighth Circuit's reasoning in Green cautioning that Green could be construed
too broadly. 723 F. Supp. at 752.
12
See also Quarrels V. Brown, 48 EPD 'Ii 38,641 (D.C. Mich. 1988) (recent
conviction was related to position of corrections officer). Note however,
that this action was brought under 42 U.S.C. ~
1983, rather than Title VII, and plaintiff alleged that he was discriminated
against because he was an ex-offender, not because the policy adversely
affected a protected group.
(1983) ~ 6665 (potential police officer could not be rejected based on one
arrest five years earlier for riding in a stolen car since there was no
conviction and the applicant asserted that he did not know that the car was
stolen). Similarly, in Decision No. 74 - 83, CCH EEOC Decision (1983) n
6424, the Commission found no business justification for an employer's
unconditional termination of all employees with arrest records (all five
employees terminated were Black), purportedly to cut down on thefts in the
workplace.
The employer could produce no evidence that the employees had been involved
in any of the thefts or that persons who are arrested, but not convicted,
are prone toward crime. Commission Decision No. 74 - 92, CCH EEOC Decisions
(1983) n 6424.
An arrest record does no more than raise a suspicion that an applicant
may have engaged in a particular type of conduct. '3 Thus, the investigator
must determine whether the applicant is likely to have committed the conduct
alleged.
This is the most difficult step because it requires the employer either to
accept the employee's denial or to attempt to obtain additional information
and evaluate his/her credibility.
An
employer need not conduct an informal "trial" or an extensive investigation
to determine an applicant's or employee's guilt or innocence. However, the
employer may not perfunctorily’ allow the person an opportunity to explain"
and ignore the explanation where the person's claims could easily be
verified by a phone call, i.e., to a previous employer or a police
department.
The employer is required to allow the person a meaningful opportunity to
explain the circumstances of the arrest(s) and to make a reasonable effort
to determine whether the explanation is credible before eliminating him/her
from employment opportunities.'" (See Examples i, 4, 5 and 6.)
III. Examples
The following examples are provided to illustrate the process by which
arrest record charges should be evaluated.
Example 1: Wilma, a Black female, applies to Bus Inc. in Highway City for a
position as a bus driver. In response to a pre-employment inquiry,
Wilma states that she was arrested two years earlier for driving while
intoxicated.
Bus Inc. rejects Wilma, despite her acquittal after trial. Bus Inc. does not
accept her denial of the conduct alleged and concludes that Wilma was
acquitted only because the breathalyzer test which was administered to her
at the time of her arrest was not administered in accordance with proper
police procedures and was therefore inadmissible at trial.
Witnesses at Wilma's trial testified that after being stopped for reckless
driving, Wiima staggered from the car and had alcohol on her breath.
Wilma's rejection is justified because the conduct underlying the arrest,
driving while intoxicated, is clearly related to the safe performance of the
duties of a bus driver; it occurred fairly recently; and there was no
indication of subsequent rehabilitation.
Contrast Example Number 1 with the facts below.
Example 2:
Lola, a Black female, applies to Bus Inc. for a position as a bus driver.
In
response to an inquiry whether she had ever been arrested, Lola states that
she was arrested five years earlier for fraud in unemployment benefits.
Loia admits that she committed the crime alleged.
She explains that she received unemployment benefits shortly after her
husband died and her expenses increased.
During this period, she worked part-time for minimum wage because her
unemployment check amounted to slightly less than the monthly rent for her
meager apartment.
She did not report the income to the State Unemployment Board for fear that
her payments would be reduced.
13
The employer's suspicion may be raised by an arrest record just as it would
by negative comments about an applicant's conduct made by a previous
employer or a personal reference.
14
Although the number of arrests is not determinative (see Litton), it may be
relevant in making a credibility determination. not be able to feed her
three young children.
After her arrest, she agreed to, and did, repay the state. Bus Inc. rejected
Lola. Lola's rejection violated Title Vli.
The commission of fraud in the unemployment system does not constitute a
business justification for the rejection of an applicant for the position of
bus driver.
The type of crime which Lola committed is totally unrelated to her ability
to safely, efficiently and/or courteously drive a bus.
Furthermore, the arrest is not
Example 3: Tom, a Black male, applies to Lodge City for a position as a
police officer. The arrest rate for Blacks is substantially disproportionate
to that of Whites in Lodge City.
In
response to an arrest record inquiry, Tom states that he was arrested three
years earlier for burglary.
Tom is interviewed and asked to explain the circumstances surrounding his
arrest. Tom admits that although the burglary charge was dismissed for lack
of sufficient evidence, he did commit the crime.
He
claims, however, that he is a changed man, having matured since then.
Lodge City rejects Tom.
Police officers are: 1) entrusted with protecting the public; 2) authorized
to enter nearly any dwelling under the appropriate circumstances; and 3)
often responsible for transporting valuables which are confiscated as
evidence.
The department is, therefore, justified in declining to take the chance that
Tom has reformed.
Even if the department is completely satisfied that Tom has reformed, it may
reject him because his credibility as a witness in court could be severely
damaged if he were asked about his own arrest and the surrounding
circumstances while testifying against a person whom he had arrested.
Since an essential element of police work is the ability to effect an arrest
and to credibly testify against the defendant in court, the department would
have two separate business justifications for rejecting Tom.
The above example is contrasted with circumstances under which an arrest
record would not constitute grounds for rejection.
Example 4: John, a Black male, applies to Lodge City for the same position
as does Tom. john was arrested three years earlier for burglary.
The charges were dismissed. Lodge City eliminates John from consideration
without further investigation and will not consider the surrounding
circumstances of the arrest. If allowed to explain, John could establish
that his arrest was a case of mistaken identity and that someone else, who
superficially fit John's description, was convicted of the crime for which
John was initially charged. Since the facts indicate that John did not
commit the conduct alleged in the arrest record, Lodge City has not carried
its burden of proving a business justification for John's rejection.
Example 5: David a Black male, applies for a teaching position in West High
School. In response to a pre-employment inquiry, David states that he was
arrested two years earlier for statutory rape, having been accused of
seducing a seventeen-year old student in his class when he taught at another
hash school.
The charges were dismissed.
West High rejects David. David relies on Litton to establish a prima facie
case of race discrimination, and West High is unable to rebut the case with
more current, accurate or specific statistics.
David denies that there is any truth to the charge. West High decides to
conduct a further investigation and learns that David was arrested after
another teacher found him engaged in sexual activity with Ann, one of his
students, in the school's locker room.
This event occurred on Ann's eighteenth birthday, but in the confusion of
the arrest, no one realized that Ann had just reached the age of majority.
Ann's parents and other teacher believed that David had seduced Ann, who had
a schoolgirl "crush" on him, prior to her eighteenth birthday.
However, since Ann would not testify against David, the charges had been
dismissed. West High may reject David. Irrespective of Ann's age, West High
is justified in attempting to protect its students from teachers who may
make sexual advances toward them. Although he might not have been guilty of
statutory rape, his conduct was unbefitting a teacher.
The above example is contrasted to the following circumstances.
Example 6: Paul, a Black male, applies for the same position as does David.
Paul was arrested two years earlier for statutory rape, having been accused
of seducing a seventeen-year old student in his class at another high
school. West High eliminates Paul from consideration without further
investigation and refuses to consider the surrounding circumstances of the
arrest.
When filing his complaint, Paul states that when he taught at the other high
school, he befriended a troubled student in his class, Alice, who was
terrified of her disciplinarian parents.
Paul insists that he never touched Alice in any improper manner and that on
the day before his arrest, Alice confided in him that she had become
pregnant by her seventeen-year old boyfriend, Peter, and was afraid to tell
her parents for fear that her father would kill him.
Paul states that the charges were dismissed because the district attorney
did not believe Alice's statements.
The district attorney and the principal of the high school, Ms. P, confirm
Paul's assessment of Alice. Ms. P. states that Peter confided in her that he
was the father of Alice's baby and that Alice had assured him that nothing
sexual had ever happened between her and Paul.
Ms. P states that there were indications that Alice's father was abusive,
that he had beaten her into giving him the name of someone to blame for her
pregnancy and that Alice thought that Paul could handle her father better
than could Peter.
Since Paul denied committing the conduct alleged and his explanation was
well supported by the district attorney and his former employer, West High
has not demonstrated a business justification for rejecting Paul.
The examples discussed demonstrate that whereas an employer may consider a
conviction as conclusive evidence that a person has committed the crime
alleged, arrests can only be considered as a means of triggering further
inquiry into that person's character or prior conduct.
After considering all of the circumstances, if the employer reasonably
concludes that the applicant's or employee's conduct is evidence that he or
she cannot be trusted to perform the duties of the position in question, the
employer may reject or terminate that person.
Approved:
9-7-90
Date
Evan J. Kemp, Jr.
Chairman
See also the
staff opinion letter on use of arrest records more than 7 years old Dated
June 11th 1998:
Click Here
The California
Labor Code prohibits employers from asking about an arrest or detention that did
not
result in a conviction.
There is an exception for certain arrest records when the applicant is
applying for work at a health care facility
and would have access to
patients, drugs or medication.
A California
employer could arguably be committing a criminal act and face misdemeanor
criminal charges if it
utilized the FBI database and discovered
that an applicant was arrested in a case that is not either pending or
resulted in a conviction, or that the
applicant engaged in certain pre-trial or post-trail diversion programs.
That is
because by statute, California is a "no-arrest"
state when it comes to employment. According to California Labor
code section 432.7:
(a) No employer, whether a public agency
or private individual or corporation, shall ask an applicant for
employment to disclose, through any written form
or verbally, information concerning an arrest or detention that
did not result in conviction, or information
concerning a referral to, and participation in, any pretrial or post trial
diversion program, nor shall any employer seek
from any source whatsoever, or utilize, as a factor in
determining any condition of employment including
hiring, promotion, termination, or any apprenticeship training
program or any other training program leading to
employment, any record of arrest of detention that did not result
in conviction, or any record regarding a referral
to, and participation in, any pretrial or post trial diversion
program. As used in this section, a conviction
shall include a plea, verdict, or finding of guilt regardless of whether
sentence is imposed by the court. Nothing in this
section shall prevent an employer from asking an employee
or applicant for employment about an arrest for
which the employee or applicant is out on bail or on his or her own
recognizance pending trial.
433. Any person violating this article is guilty of a
misdemeanor. (Emphasis added)
