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Case Studies: Using Arrest Records to Deny Employment

Filed under Office & HR.

Case studies explaining when employers subject to anti-discrimination laws may and may not use criminal arrest records to deny employment.

Criminal arrest records can be used by employers to deny employment only under certain conditions. These case studies illustrate the reasoning courts may follow when evaluating whether a denial of employment based on criminal arrest records was proper.

These case studies are legally applicable only if you are subject to federal anti-discrimination laws (15 or more employees). However, even if you aren't, they are still good guides for evaluating and using arrest records.

State laws may also impose restrictions as well as requirements as to whether arrest records can or should be used to deny employment. Be sure to check the laws in your state.

Case Study 1

Benny applies to Big Bus Inc. in Roads Town for a position as a bus driver. In response to a pre-employment inquiry, Benny states that he was arrested a year earlier for driving while impaired. Big Bus Inc. rejects Benny, despite his acquittal after trial.

Big Bus Inc. does not accept Benny's denial of the conduct alleged and concludes that Benny was acquitted only because the test to determine his blood alcohol level performed at the time of his arrest was not administered in accordance with proper police procedures and was therefore inadmissible at trial. Witnesses at Benny's trial testified that after being stopped for reckless driving, Benny staggered from the car and had alcohol on his breath.

Big Bus Inc.'s refusal to hire Benny is justified because the conduct underlying the arrest, driving while impaired, is clearly related to the safe performance of the duties of a bus driver, and occurred fairly recently. Also, there was no indication of subsequent rehabilitation.

Case Study 2

Rupert applies to Big Bus Inc. for a position as a bus driver. In response to an inquiry whether he had ever been arrested, Rupert states that he was arrested seven years earlier for fraud in unemployment benefits. Rupert admits that he committed the crime alleged.

Rupert explains that he received unemployment benefits shortly after his wife died, and his expenses increased. During this period, Rupert worked part-time for minimum wage because his unemployment check amounted to slightly less than the monthly rent for his meager apartment. Rupert did not report the income to the state unemployment board for fear that his payments would be reduced and that he would not be able to feed and provide for his two young children. After Rupert's arrest, he agreed to, and did, repay the state.

Big Bus Inc. rejected Rupert for the position. However, in this case, Rupert's rejection violated federal anti-discrimination laws. 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 that Rupert committed is totally unrelated to his ability to safely, efficiently, and courteously drive a bus. Also, the arrest was not recent.

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