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Can An Employer Refuse to Hire an Applicant Based Upon An Arrest?

Answer: Depends

The New York State Human Rights Law states that an applicant may not be denied employment or licensure because of his or her conviction record unless there is a direct relationship between the job sought or unless hiring or licensure would create an unreasonable risk to property or to public safety and that individual is entitled to a statement of the reasons for such denial.

The United States Equal Employment Opportunity Commission (EEOC) has offered policy guidance with respect to determining whether arrest records may be considered in employment decisions. The Commission concluded, “since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used routinely exclude persons from employment. However, conduct which indicates unsuitability for a particular position is a basis for exclusion. Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.”

The EEOC cites Gregory v. Litton Systems Inc., which involved an employer use of an applicant’s arrest record, as the lead case that indicates using them would have a disparate impact on a protected class. In this suit, the district court found that Litton showed no reasonable business purpose for continuing to ask prospective employees about their arrest records and that the apparently race-neutral employment questionnaire actually operated to bar employment to black applicants in far greater proportion than to white applicants. The Litton case is used to by the EEOC and courts to establish a prima facie case of discrimination against blacks where arrests records are used in employment decisions because the case relied upon extensive statistics that showed blacks are arrested more frequently than whites in proportion to their numbers.

In 2012, the EEOC released “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” wherein it states that “an employer’s use of an individuals criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.”

Although the Commission’s policy of discouraging employers use of arrest records is not entirely new, this recent policy guidance has been sharply criticized and courts generally reject the notion that basing hiring decisions on criminal conviction is discriminatory. This occurred when the EEOC filed a suit against Carolina Freight Carrier Corp., in 1989 on behalf of a Hispanic man who had been refused employment because of multiple arrests and had served prison time for larceny. The EEOC argued that despite his record he was qualified to operate a tractor-trailer. The district judge ruled in favor of the Carolina Freight Carrier Corporation.

Overall, employers in New York State and the City of New York cannot refuse to hire an individual based upon an arrest, regardless of the number of times, which did not result in a conviction for a crime with the exception being if the employer is a law enforcement agency. Employers can ask about open arrests, one that has not resulted in a disposition.

Employers may also ask about prior convictions but New York State and New York City law makes it illegal for an employer to make hiring decisions or terminate an employee based upon past criminal convictions. However, this law does not apply to private employers with less than four employees or law enforcement agencies.

If an individual is denied employment because of a criminal conviction they may request from the employer, in writing, the reason why the employer denied the individual the job and the employer has thirty days to respond to the request.

You may consider also filing claims of race discrimination under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1871 (Government employees as well as private employees hired by employers working under a Memorandum of Understanding with a government agency or contractor), and the New York State Human Rights Law because there is substantial data to support that race is a significant factor impacting arrest and conviction rates.

If you believe that, you have suffered from arrest or conviction discrimination or race discrimination contact The Sanders Firm, P.C. in New York. We will review your claim thoroughly, providing you with an outline of possible actions you may wish to take. We are ready to be your voice for justice.