February 15, 2013
Just when you thought that reality TV couldn’t get any stranger, nine former American Idol contestants in January 2013 accused the show and the Fox network of racism under Title VII of the Civil Rights Act of 1964 (Title VII) and California law. As part of their claims, the contestants alleged that the show’s questioning of them about past arrest history and the use of such information in making qualification decisions had a disparate impact on African American and other minority contestants. The contestants further asserted that despite the format of the show, they were essentially applying for “employment” with the production company, such that its producers were prohibited under California law from asking if the contestants had ever been arrested.
Besides being interesting entertainment news, the American Idol accusations serve as the latest reminder to employers in California (and across the nation) of the legal implications and risks that flow from federal and state restrictions on employment-related arrest inquiries.
Separate and apart from federal Fair Credit Reporting Act background check requirements, there is generally no federal law that expressly prohibits an employer from asking applicants or employees about their arrest and conviction history. However:
- An employer who adopts a blanket policy of excluding all applicants with an arrest record could be facing disparate impact liability under federal nondiscrimination law if: (a) such policy or practice disproportionately affects a protected class; and (b) the employer cannot show that the policy or practice is “job related and consistent with business necessity.”
- In April 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance regarding the use of arrest and conviction records in employment decisions under Title VII.
Most notably, the new EEOC guidance emphasizes that any denial of employment for an arrest record should be based on an individualized assessment, considering the applicant or employee and how his or her history relates to the performance of a particular job. The new guidance also reflects the EEOC’s longstanding position that reliance on arrest and conviction records alone in employment decisions may, under certain circumstances, result in disparate impact discrimination.
While the EEOC’s April 2012 guidance is not binding law, employers are required to comply with state and local laws that provide more express limits on the use of arrest history in making employment decisions.
For example, in California, employers are severely restricted in their ability to ask about or use arrest information regarding applicants or employees. California employers:
- Are prohibited from asking job applicants to disclose information about arrests that did not result in a conviction or that resulted in a referral to and participation in a pre- or post-trial diversion program.
- Are prohibited from using arrest records that did not result in conviction as a factor in making any employment decisions, including hiring, promotion or termination, even if the information is discovered or disclosed through a legitimate third-party source.
- Are not prohibited, however, from asking an applicant or employee about an arrest for which the individual is out on bail (or released on his or her own recognizance pending trial).
In addition to California, a majority of states have enacted similar laws that restrict employers from requesting or using arrest records in connection with employment practices or decisions. However, the scope of such limitations varies heavily from state to state. By way of example:
- Massachusetts expressly prohibits any employment-related inquiries about arrests that did not result in a conviction.
- Michigan only restricts employers from asking about misdemeanor arrests that did not lead to conviction.
- New York and Colorado prohibit employers from asking about arrest records that have been sealed.
- Virginia and Delaware prohibit employers from asking about arrest records that have been expunged.
- Georgia and Oklahoma prohibit employers from asking about arrest records that have been sealed or expunged.
- In some states like Pennsylvania, employers are permitted to ask about arrest histories only if they relate directly to the job, or require employers who consider prior arrests to take particular facts into account, such as the seriousness of the crime and how long ago it occurred.
- States like Washington prohibit employers from considering older offenses altogether (e.g., beyond 10 years).
- States like Wisconsin allow employers to ask about arrests only with respect to pending criminal charges if the circumstances of the charge substantially relate to the circumstances of the particular job.
- In other states such as Texas and Florida, while there are no statutory restrictions placed on an employer’s ability to ask about arrest histories, there are protections provided to employees with regard to what information they are required to report in response to inquiries (e.g., Texas and Florida law allow individuals whose criminal records have been expunged by court order to generally deny both the existence of the arrest that was expunged and the order expunging it).
Unlike the above examples, to date, there remain only a handful of jurisdictions that have not enacted some form of legislation that limits the use of arrest history in private employment decisions (i.e., Alabama, Arkansas, Idaho, Iowa, Kentucky, Louisiana, Missouri, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Vermont, West Virginia, Wyoming and the District of Columbia). Thus, given the regional and national scope of many employer operations and the ever-changing legislative restrictions on the use of arrest history, employers are increasingly well advised to: (1) discontinue the use of arrest information in making employment decisions; or (2) at least take care to confirm compliance with the rules for the jurisdictions that apply to their applicants and employees.
For further information and guidance on the use of arrest history and records, please contact the author or other members of the McGuireWoods LLP’s Labor and Employment team.