Using Arrest Records in Hiring Decisions

Arrest Records in Hiring Decisions

People often think that the EEOC (Equal Employment Opportunity Commission) prohibits the use of arrest records in hiring decisions. This is not the case. Arrest records can be used if it is determined that the applicant engaged in the conduct they were arrested for. The use of this information is not completely prohibited, but there are restrictions in its use. Nearly one third of the United States adult population has a criminal record. Just because there is record of arrest doesn’t mean that they were convicted of a crime. If they weren’t convicted, they likely didn’t commit the crime. Our justice system requires the highest level of proof for a conviction.  

When can arrest records be used when hiring?

When you use criminal records in hiring decisions you must consider a few things. See here for more information on criminal records.

  1. Did the applicant 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?

If the employer chooses not to hire someone with a criminal record it should be a “business necessity”. The use of arrest records in hiring decisions likely is not enough to prove business necessity. The employer should think about the surrounding circumstances and offer the applicant an opportunity to explain themselves. Arrest Records can only be used if the applicant engaged in the conduct they were arrested for. It will be difficult for an employer to prove a business necessity through inquiries and arrest records. 

The EEOC ruled that employment policies which exclude people base on arrest or convictions unrelated to the job violates the Civil Rights Act of 1964. This was because of the disproportionate impact the use of arrest records has on minorities. Minorities are arrested and convicted at a significantly higher rate than their percentage in the population, and because of this they would be disproportionately excluded from employment.

Here are some examples of when using arrest records in hiring decisions might be appropriate.

Example 1: Wilma 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, Wilma 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.

Example 2: Tom 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. 

How NOT to use arrest records when hiring

Example 4: John 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.

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