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Not everyone with a criminal record should be denied employment. The seriousness of the offense, the amount of time that has lapsed since the offense, sustained rehabilitation efforts and a significant change in lifestyle are all factors that should influence the decision to hire someone with a record.
Many employers are troubled about what to do with an applicant who has one or more arrests on their record that did not result in a conviction. While it is inappropriate to deny employment based on an undefined arrest that did not result in a conviction it is appropriate to deny employment because of poor judgment or decision making abilities. Because of this it is important to review the details of the arrest or conviction before making a hiring decision.
Why Documented Details are Important
The Equal Employment Opportunity Commission is the prevailing agency that investigates discriminatory practices. The following examples were taken from a Guidance Statement issued by the EEOC on September 7, 1990 and updated as recently as August 23, 2007. See : http://www.eeoc.gov/policy/docs/arrest_records.html for details.
Example 1:
Wilma applies to Bus Inc. in Highway City for a position as a bus driver. In response to a pre-employment inquiry, Wilma states that she was arrested two years earlier for driving while intoxicated. Bus Inc. rejects Wilma, despite her acquittal after trial. Bus Inc. does not accept her denial of the conduct alleged and concludes that Wilma was acquitted only because the breatholizer test which was administered to her at the time of her arrest was not administered in accordance with proper police procedures and was therefore inadmissible at trial. Witnesses at Wilma’s trial testified that after being stopped for reckless driving, Wilma staggered from the car and had alcohol on her breath. Wilma’s rejection is justified because the conduct underlying the arrest, driving while intoxicated, is clearly related to the safe performance of the duties of a bus driver; it occurred fairly recently; and there was no indication of subsequent rehabilitation.
Contrast Example Number 1 with the facts below.
Example 2:
Lola applies to Bus Inc. for a position as a bus driver. In response to an inquiry whether she had ever been arrested, Lola states that she was arrested five years earlier for fraud in unemployment benefits. Lola admits that she committed the crime alleged. She explains that she received unemployment benefits shortly after her husband died and her expenses increased. During this period, she worked part-time for minimum wage because her unemployment check amounted to slightly less than the monthly rent for her meager apartment. She did not report the income to the State Unemployment Board for fear that her payments would be reduced and that she would not be able to feed her three young children. After her arrest, she agreed to, and did, repay the state. Bus Inc. rejected Lola. Lola’s rejection violated Title VII. The commission of fraud in the unemployment system does not constitute a business justification for the rejection of an applicant for the position of bus driver. The type of crime which Lola committed is totally unrelated to her ability to safely, efficiently and/or courteously drive a bus. Furthermore, the arrest is not recent.
Example 3:
Tom applies to Lodge City for a position as a police officer. In response to an arrest record inquiry, Tom states that he was arrested three years earlier for burglary. Tom is interviewed and asked to explain the circumstances surrounding his arrest. Tom admits that although the burglary charge was dismissed for lack of sufficient evidence, he did commit the crime. He claims, however, that he is a changed man, having matured since then. Lodge City rejects Tom. Police officers are: 1) entrusted with protecting the public; 2) authorized to enter nearly any dwelling under the appropriate circumstances; and 3) often responsible for transporting valuables which are confiscated as evidence. The department is, therefore, justified in declining to take the chance that Tom has reformed. Even if the department is completely satisfied that Tom has reformed, it may reject him because his credibility as a witness in court could be severely damaged if he were asked about his own arrest and the surrounding circumstances while testifying against a person whom he had arrested. Since an essential element of police work is the ability to effect an arrest and to credibly testify against the defendant in court, the department would have two separate business justifications for rejecting Tom.
The above example is contrasted with circumstances under which an arrest record would not constitute grounds for rejection.
Example 4:
John applies to Lodge City for the same position as does Tom. John was arrested three years earlier for burglary. The charges were dismissed. Lodge City eliminates John from consideration without further investigation and will not consider the surrounding circumstances of the arrest. If allowed to explain, John could establish that his arrest was a case of mistaken identity and that someone else, who superficially fit John’s description, was convicted of the crime for which John was initially charged. Since the facts indicate that John did not commit the conduct alleged in the arrest record, Lodge City has not carried its burden of proving a business justification for John’s rejection.
Example 5:
David applies for a teaching position in West High School. In response to a pre-employment inquiry, David states that he was arrested two years earlier for statutory rape, having been accused of seducing a seventeen-year old student in his class when he taught at another high school. The charges were dismissed. West High rejects David. David denies that there is any truth to the charge. West High decides to conduct a further investigation and learns that David was arrested after another teacher found him engaged in sexual activity with Ann, one of his students, in the school’s locker room. This event occurred on Ann’s eighteenth birthday, but in the confusion of the arrest, no one realized that Ann had just reached the age of majority. Ann’s parents and other teachers believed that David had seduced Ann, who had a schoolgirl “crush” on him, prior to her eighteenth birthday. However, since Ann would not testify against David, the charges had been dismissed. West High may reject David. Irrespective of Ann’s age, West High is justified in attempting to protect its students from teachers who may make sexual advances toward them. Although he might not have been guilty of statutory rape, his conduct was unbefitting a teacher.
The above example is contrasted to the following circumstances.
Example 6:
Paul applies for the same position as does David. Paul was arrested two years earlier for statutory rape, having been accused of seducing a seventeen-year old student in his class at another high school. West High eliminates Paul from consideration without further investigation and refuses to consider the surrounding circumstances of the arrest. When filing his complaint, Paul states that when he taught at the other high school, he befriended a troubled student in his class, Alice, who was terrified of her disciplinarian parents. Paul insists that he never touched Alice in any improper manner and that on the day before his arrest, Alice confided in him that she had become pregnant by her seventeen-year old boyfriend, Peter, and was afraid to tell her parents for fear that her father would kill him. Paul states that the charges were dismissed because the district attorney did not believe Alice’s statements. The district attorney and the principal of the high school, Ms. P., confirm Paul’s assessment of Alice. Ms. P. states that Peter confided in her that he was the father of Alice’s baby and that Alice had assured him that nothing sexual had ever happened between her and Paul. Ms. P. states that there were indications that Alice’s father was abusive, that he had beaten her into giving him the name of someone to blame for her pregnancy and that Alice thought that Paul could handle her father better than could Peter. Since Paul denied committing the conduct alleged and his explanation was well supported by the district attorney and his former employer, West High has not demonstrated a business justification for rejecting Paul.
In reviewing the circumstances of an arrest or a conviction it is important to review official reports and records or to conduct interviews to verify details rather than accepting the explanation given by the candidate. Police and court reports can usually be made available to employers and we recommend their use both in making a hiring decision and for permanent documentation for the candidate’s pre-employment file.
Background Consulting Services, Inc., uses employees with extensive experience in the criminal justice field and we believe we are very qualified to obtain, review, evaluate and consult about arrest/received criminal records and criminal convictions records.
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