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EEOC Provides Guidance on Use of Arrest Records in Employment

May 31, 2013

The Equal Employment Opportunity Commission (“EEOC”) released an informal discussion letter regarding the use of criminal arrest records in employment decisions. The EEOC’s letter was issued in response to an inquiry by an individual who was excluded from employment based on an arrest that resulted in a nolle prosequi, dismissing the charges after the completion of a misdemeanor intervention, which is not the same as a conviction.  The individual had never pled or been found guilty of the offense.  According to the EEOC, consideration of arrest records in employment decisions may raise issues under Title VII, either if an employer discriminates between job applicants with the same or equivalent arrest records, or if an employer’s reliance on arrest records disproportionately excludes members of a protected class. Specifically, the EEOC finds that disqualifying applicants because of arrest records may disproportionately exclude African-Americans and Hispanics. Such a disproportionate exclusion, however, is not automatically discriminatory under Title VII. If the employer shows that the exclusion was factually justified – given the severity and timing of the
underlying conduct and the nature of the job itself – there is no discrimination.

The EEOC letter underscores that the fact of an arrest record, in itself, does not establish that the alleged conduct occurred. But, an employer’s knowledge of an arrest may trigger an inquiry into the underlying conduct. An employer is permitted to make an employment decision based on conduct underlying the arrest if this conduct makes the individual unfit for the position in question. Employers should provide an opportunity for the individual to correct mistaken facts or provide an explanation before making a final employment decision.