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The Supreme Court's 1966 Miranda ruling providing for the right to remain silent is now a well-known phrase thanks to American mass media and, especially, popular television police dramas. However, not nearly as well known is, that for better or worse, this right can also be extended to the workplace. The topic of this paper is to examine the legality and issues involved with regard to questioning applicants during the hiring process about their arrest and conviction records. Discrimination occurs at all levels of society involving many types of people for various reasons. In the 1960 s a populist movement in the United States raised national awareness of civil rights as an issue in American society, culminating in 1964 with landmark legislation.
The Civil Rights Act of 1964 dramatically altered the landscape that had permitted discrimination to occur in the United States of America upon the basis of an individuals race, color, religion, sex and national origin. However, landscapes do not change overnight. American society and its employers have been forced to revise their hiring, selection, promotion, and termination employment practices in order to conform to Title VII. The Equal Employment Opportunity Commission (EEOC) was created to enforce adherence to the Act by employers and promote the practice of observing Title VII provisions in the workplace. The EEOC has developed administrative guidelines which federal agencies and employers must follow to remain in compliance with Title VII. In cases where those guidelines are not followed, the EEOC may bring suit in federal court against the employer in question.
One such guideline, and the topic of this paper, involves pre-employment inquiries. The Eeoc's pre-employment inquiry guidelines are designed to assist employers in identifying what types of questions are permissible and which should be avoided during the pre-offer or hiring stage. For example, EEOC guidance suggests that comments made during the hiring process by employers regarding the nature of an applicants surname should be avoided. Such questioning may violate the national origin protection of Title VII and could be regarded as discriminatory. 1 Similarly, questions about job-related injuries or workers compensation history are prohibited at the pre-offer stage. 2 On the other hand, many permissible applicant questions do exist, and the EEOC does not restrain employers from asking them. These range from inquiries regarding past applicant performance relating to job functions and work attendance habits to past or present illicit drug use. The list of permissible questions is not exhaustive.
Perhaps not surprisingly, employers do not always welcomed these guidelines. Some believe that certain EEOC guidance policies do not reflect a practical application of the principles of Title VII and claim that the EEOC goes way too far 3 in its requirements for them to be considered reasonable. In one controversial interpretation, the Equal Employment Opportunity Commissions position is that an employer is precluded by [EEOC interpretation of] Title VII of the Civil Rights Act of 1964 from asking a potential employee about arrest records. The rationale behind this position is that arrests do not prove guilt and that screening out applicants with arrest records has an adverse impact on minorities. 4 Such a stance on the part of the EEOC places employers in somewhat of a double bind so that every stage in the hiring process can subject the employer to legal liability, including discrimination claims [and] negligent hiring. 5 We now turn our attention o the subject of discrimination in employment hiring. Discriminatory treatment at the pre-offer stage of hiring generally falls into one of two categories: disparate treatment and disparate impact. Disparate treatment can be defined as treating some people less favorably than others because of certain factors.
Disparate impact involves practices that fall more harshly on one group than another and cannot be justified by business necessity. 6 Race, color, religion, creed, sex, age, marital status, national origin, mental or physical disability, veteran status, or sexual orientation represent some of the reasons job applicants are subjected to discrimination. Note, that not all of these factors are legally protected from discrimination during the hiring process. The legal protection would depend upon various applicable state or federal law and the individual circumstances of the case. Because of its disparate impact upon minorities, questioning an applicant about his or her arrest record has been determined to be a discriminatory practice by the EEOC. Many facts support this claim since it is minorities who are arrested in numbers disproportionate to their population representation within the general population. According to 1998 US Census data, while minorities total 28. 7 % of the US population, they account for nearly 34 % of the all arrests.
Figure 1: 1998 US Population Distributions by Race In addition, figures for the total number of national arrests during 1998 showed 66 % of the arrested were white while 32 % were black; yet blacks constitute only 12. 7 % of the population. (US Census Data) Figure 2: 1998 US Arrest Distributions by Race Furthermore, Native Americans have consistently been arrested at approximately three times the Black rate and ten times the White rate, according to age-adjusted figures for 1950 - 1968. 7 Such startling disparity in minority arrests with respect to the white majority clearly make a case for disparate impact. Proponents of prohibiting employers from asking applicants about their arrest records hold that the danger of disparate treatment of individuals also buoys the need for the current EEOC stance. They argue that questioning applicants about their arrest records, and basing any hiring decision upon that data, posses a greater risk for discriminatory abuse by employers than providing any protection against hiring dangerous employees. The logic behind this position is based upon the observation that arrests are not equivalent to convictions and cannot, therefore, automatically be assumed to establish an individual as an employment risk. Over 40 % of every 100 individuals who are arrested for felonies are not prosecuted or have their cases dismissed at first appearance (United States Department of Justice, 1987, in Miller, 1997). So, UCR [Uniform Crime Reports] arrest statistics tend to create myths about who is dangerous and guilty. 8 Employer regulatory responsibilities are many these days, and just as employers must avoid discriminatory hiring practices, so too must they protect themselves against negligent hiring.
These seemingly contradictory requirements to properly investigate employees at the pre-offer stage to avoid negligent hiring while at the same time prohibiting employers from receiving and considering certain pertinent data, such as arrest records places employers in somewhat of a double-bind. Perhaps adding to the confusion, some state laws actually require employers to conduct background checks for certain positions. 9 These scenarios usually involve employees who provides home health services or work in public education school systems. If an employee commits an illegal act in the performance of his or her job functioning, a reasonable investigation duty standard is widely believed to protect employers from legal liability with respect to negligent hiring. Generally the law requires that employers have a duty to make a reasonable investigation of an applicant's fitness before hiring. 10 This is done to establish the likelihood of an applicant committing illegal acts, which could reasonably have been predicted through a simple background check. The extent of [this d...
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Research essay sample on Using Arrest Records In Hiring
