Can an application ask whether an applicant has been arrested? How about convicted?
Applications should not ask whether an applicant has been arrested. The EEOC takes the position that inquiries into arrests can have a discriminatory impact on applicants because, statistically speaking, people belonging to specific protected categories have a higher likelihood of being arrested than others.
Asking about convictions is a little trickier. “Ban the Box” is the battle cry for proponents of eliminating inquiries about convictions from all job applications. Proponents claim that, as with arrests, people in certain protected classifications have a higher rate of criminal conviction. They argue that eliminating applicants due to a criminal conviction without other consideration may have a discriminatory impact. Currently, employers can still ask about criminal convictions, but they must be careful how they use the results of that inquiry. Employers should only disqualify candidates from consideration because of a conviction that is directly related to the candidate’s ability to perform the job. For example, an employer need not hire a delivery driver with a history of DWI convictions. That same candidate, however, should not be automatically removed from consideration for a position as a front desk clerk.
While asking about convictions isn’t illegal per se, the best practice may be to remove the question from applications and only run criminal background checks on the “finalists” for a position.
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The information herein is not legal advice. The information is in the form of legal education and is intended to provide general information about the matter discussed. The above is not, nor is it intended to be, legal advice and does not create an attorney/client relationship.