Using an Employee’s Criminal or Arrest Record May be Discriminatory

Use of Employee’s Criminal or Arrest Record May be Discriminatory


In 2012, the EEOC issued a new Guidance outlining how and when an “employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.”  Just because an employee suffers an arrest, it does not give the employer cart blanch to take negative actions against an employee. You as an employer may be in violation if you treat criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).  Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:

  • They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND
  • They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.  Therefore, it is important to ensure that you as the employer, maintain an effective and uniform hiring process AND employee handbook regarding the reporting of, and potential consequences, your employee’s may face upon an arrest and/or conviction.  It is even more important to ensure that all individuals, regardless of race, are treated identical upon such violations.  The fact that an individual was arrested is not proof that he/she engaged in criminal conduct. Therefore, an individual’s arrest record standing alone should not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee).  However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

While the laws of Title VII have been implemented to ward off unnecessary discrimination, the employer also carries the obligation to ensure the safety and welfare of its employees, clients and the general public.  Maintaining a healthy balance at times can become quiet complex and overwhelming.  When is it okay to terminate an employee due to an arrest or conviction?  What if you feel this person is a risk and/or liability to the services and/or functions your company performs? While Title VII provides certain protections as it relates to discrimination, it further provides the employer with the flexibility to determine when an individual is not fit for a certain position or job because their offense or criminal history is in conflict with the employer’s business purposes.  For example, an individual who performs accounting functions for a local company who is arrested on a charge of embezzlement, regardless of their race, the employer would be justified in removing that individual from performing such accounting functions, just as an individual working as a daycare assistant, who is arrested on child endangerment charges, could pose a risk to the employer.  In contrast, an employee performing warehouse work who is arrested for a domestic issue, would not necessarily qualify as a reasonable or necessary termination and that employee could potentially bring a charge of discrimination.

So how do you know when it is okay to terminate or not hire, based on an arrest or criminal background?  Outside of being realistic and asking yourself “would I be able to justify why I did not hire and/or why I terminated this person” – the only real way to know this answer is to have a well-educated and knowledgeable Human Resources person as your go to person to answer these types of questions.  Don’t have in-house HR?  No worries, NotzHR is available at hourly rates to work with your company and/or organization to assist you in these matters. The world of HR’ing is more complex today than it has ever been before and it will continue to evolve as the laws and guidelines of employment law continue to change.  NotzHR will help guide your company/organization through all of your employee related HR needs.





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