Can I use criminal & arrest records when making employment decisions?

Is it against the law to use criminal and arrest records when making employment decisions?


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.

Should I use arrest records differently from conviction records?


Remember that the fact of an arrest does not establish that criminal conduct has occurred. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

In contrast, a conviction record almost always will serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Is it okay to review individuals’ criminal histories on a case by case basis?

This is not advisable.

A legal violation may occur when an employer treats criminal history information differently for different applicants or employees, especially when it appears based on workers’ race or national origin.

So I should adopt a neutral policy (e.g., excluding applicants from employment based on certain criminal conduct), right?

That may not be sufficient.

An employer’s neutral policy may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.

This is because national data shows that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the U.S. Equal Opportunity Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.

But what if I operate a business, like a daycare, where it is necessary to vet out people with criminal backgrounds

Then you can make a “job related and consistent with business necessity” defense.

You can do this by:

  •  Validating the criminal conduct exclusion for the position in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
  • Developing a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.

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