Flint, MI asked in Employment Discrimination and Employment Law for Michigan

Q: Can a employer decline a job offer if they run a background check and see an arrest but no charge

1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Employment Law Lawyer
  • Frisco, TX

A: Using a job applicant's criminal background as a method for screening job candidates is problematic unless there is a specific law or legal regulation that disqualifies a person based upon specific criminal conduct. In many instances, prophylactic use of arrest and conviction records can be a pretext for discrimination based on race, color, national origin, and/or ethnicity. See EEOC guidelines: https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions

Empirically, blacks and Hispanics in the US are more likely to be arrested and more likely to be convicted of crimes than either whites or Asians. Disqualifying job candidates based on broad facially neutral criterion (e.g. anyone arrested for a crime within the last five year, or anyone convicted of a felony) can nevertheless have a disparate impact on applicants based on race, color, national origin, and/or ethnicity.

Employers can drill down and make decisions based on the specific nature of an arrest or conviction as compared to the essential job functions of a position. For example, an employer can disqualify a job applicant for a position as bookkeeper based upon a previous arrest or conviction for embezzlement. Similarly, an employer might disqualify an applicant seeking a door-to-door sales position if the applicant was previously arrested for sexual assault.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.