Blanket Employer Discrimination for Arrest Record (v. Conviction) Violates Title VII

It is not unusual for a person to be arrested but never charged. It is also not unusual to be arrested and charged, but not convicted. When either of these situations arises, among the first concerns is the effect that the arrest will have on future employment.

The case-law and the EEOC make clear that with few exceptions employers are prohibited from blanket discrimination on the basis of arrests records alone. Such discrimination would constitute a violation of Title VII of the Civil Rights Act of 1964. The reasoning behind this is clear.

It is has been well established that arrest records alone are not a reliable indicator that the person has actually committed a crime. In addition, and related to the first, it is clear also that discrimination based upon arrest records alone has a highly discriminatory impact on minorities, particularly blacks and Hispanics. As such, these practices are highly discouraged.

There are some exceptions to this prohibition. However, the exceptions are fairly narrow and the burdens are on the employer to prove a legitimate basis for using an arrest record to justify a hiring or other employment decision. The EEOC sets forth the business justification exception with a thorough discussion in its report, “Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.”

Though business justifications may justify consideration of arrests records in hiring or other employment decisions, the burden is on the employer to show that the practice is necessary for its business operations. The employer must both show that the arrest indicates culpability and that the basis for the arrest has some rational relationship to the employment position at issue. If either is missing, then an arrest alone cannot form the basis of an adverse employment decision.

In New Mexico, the second criterion is perhaps the most problematic since many jobs here require certain levels of security clearance. However, other jobs might pose problems as well such as cashiering, banking, bookkeeping, accounting or other such jobs where the arrest was for theft or other crimes of dishonesty. There are certainly many other situations where the arrest if indicative of guilt would fall within the second prong of the business justification exceptions.

Though consideration of arrest in employment decisions may fall within the exception, there remain limitations. First, and foremost, there cannot be a blanket policy of excluding employment for anyone with an arrest record. This would most certainly violate the law. Instead, the employer must make additional inquiries into the circumstances of the arrest. The employer must then determine that the arrest in fact indicates guilt and that guilt of such an offense has some bearing on job performance. The burden is on the employer to prove both these elements.

All this being said (i.e. employers cannot have a blanket policy against hiring those with arrest records, the burden is on the employer, the burden is high and so on) the problem for employees in this position is that it may be hard to prove. More to the point, it may be very expensive to prove which may make obtaining an attorney quite difficult in the absence of some very compelling circumstances.

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