EEOC distinguishes between arrest and underlying conduct

Employers may consider the underlying conduct that triggered an arrest when making employment decisions, said the assistant legal counsel of the U.S. Equal Employment Opportunity Commission (EEOC) in an informal discussion letter. Making decisions based on arrests alone is problematic under Title VII of the Civil Rights Act, because of the disparate impact on racial minorities. Some states, such as California, completely prohibit consideration of arrests that don’t result in a conviction.

If you learn that an applicant was arrested for conduct that raises a job-related concern, one way to find out about the underlying conduct is simply to ask the applicant. If the individual admits to engaging in the conduct, then you can make your decision based on the applicant’s admission, not the arrest.

As a general principle, it’s safer from an employment law standpoint not to delve into the circumstances around an arrest, particularly if the incident occurred a long time ago. But if the arrest happened recently enough that the charges are still pending, then you’re on firmer ground. If you decide to hire the individual anyway, you can require disclosure of the ultimate outcome of the case. For further guidance, see our Legal Guide, “Arrest of an Off-Duty Employee:  What to Do” (3265).