The Volokh Conspiracy

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Volokh Conspiracy

Employment discrimination based on previous arrests


The Fair Credit Reporting Act permits private information vendors to report to the client employers information about a job applicant's arrests for the previous seven years, even if those arrests did not result in conviction. [Indeed, if the record-subject is applying for a job that carries an annual salary in excess of $75,000 per year, even the seven-year limitation does not apply.] At first blush, it seems preposterous that a police officer has the de facto power to saddle an individual with a lifelong employment disability. On reflection, however, the issue is complicated.

If an employer can base its hiring decision on a previous employer's suggestion or hint that the job applicant had been dismissed for dishonesty, why not on an arrest that was dismissed or even resolved by an acquittal?

Suppose an investigator tells a client employer that a job applicant's neighbors believe that she is a member of a gang or associates with members of organized crime? Must the employer ignore that information because it is not admitted and has not been proved beyond a reasonable doubt? An employer is not required to consider a job applicant innocent until proven guilty. Isn't it widely believed that the Catholic Church leaders should have defrocked, or at least isolated, priests against whom there were credible accusations of sexual misconduct?

Is it wrong (unlawful) for an employer to assume that arrests are based on probable cause? If not, can the employer treat assume probable cause once the prosecutor files charges? Once a judge finds probable cause? After a grand jury indicts?

It would be a mistake to infer that an arrest that did not lead to a conviction was improper. The most likely reason for dismissal of charges is the victim's unwillingness to testify. The (alleged) victim may have found the process too time-consuming or embarrassing. Perhaps the victim or key witness fears the defendant's retaliation or desires reconciliation. Prosecution may have been stymied because key evidence was suppressed due to a Fourth Amendment violation, improper interrogation or a speedy trial act violation. Such dismissals should not be interpreted as indicating the defendant's innocence.

In some states, a significant percentage of criminal cases are resolved by a deferred prosecution agreement, whereby the suspect is placed on "prosecutorial probation" for six months or a year. If there are no new charges during that period, the original charges are dismissed.

According to the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction records in Employment Decisions, "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, the guidance advises that employers can reject a minority job applicant on the basis of "conduct which indicates unsuitability for a particular position . . . where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent."

The guidance provides a number of explanatory hypothetical examples. Here is Example #1 (slightly edited):

Wilma, a black female, applies to Bus Inc. for a position as bus driver. In response to a pre-employment inquiry, she states that she was arrested two years earlier for DWI, but acquitted at trial. Bus Inc. hires someone else. When Wilma asks for an explanation, Bus Inc.'s HR officer explains that the acquittal was based on suppression of the BAC test, which was not administered according to proper police procedures. At trial, witnesses testified that Wilma staggered when she got out of the car and had alcohol on her breath. Wilma's rejection is justified because the conduct underlying the arrest is clearly related to the safe performance of a bus driver's duties; it occurred fairly recently, and there was no indication of subsequent rehabilitation.

In this example, the EEOC would permit the employer to reject Wilma, even though she was acquitted because of trial testimony suggesting a likelihood of factual guilt. Suppose there had not been a trial with witness testimony, but simply a dismissal? Must the employer investigate the facts of the case? Perhaps the employer must find out where Wilma was arrested and contact the relevant police department or prosecutor's office for information about her case?

Suppose the harried prosecutor's office does not take the call? Suppose the relevant prosecutor has left the office? Suppose the prosecutor doesn't remember the case and insists that she is too busy to dig out, especially if she is inundated with similar inquiries? If the prosecutor does give the employer her view of why Wilma was guilty of the charged offense, is that sufficient to support a negative hiring decision or must the employer give Wilma a chance to contradict the prosecutor's account? For all job applicants who are not hired, must the employer maintain a case file documenting its investigative findings and its rationale for preferring another candidate?