Using Arrest Records In Hiring Essay, Research Paper

The Supreme Court & # 8217 ; s 1966 Miranda governing supplying for? the right to stay soundless? is now a well-known phrase thanks to American mass media and, particularly, popular telecasting constabulary play. However, non about every bit good known is, that for better or worse, this right can besides be extended to the workplace. The subject of this paper is to analyze the legality and issues involved with respect to oppugning appliers during the hiring procedure about their apprehension and strong belief records.

Discrimination occurs at all degrees of society affecting many types of people for assorted grounds. In the 1960? s a populist motion in the United States raised national consciousness of civil rights as an issue in American society, climaxing in 1964 with landmark statute law. The Civil Rights Act of 1964 dramatically altered the landscape that had permitted favoritism to happen in the United States of America upon the footing of an indicidual? s race, colour, faith, sex and national beginning. However, landscapes do non alter overnight. American society and its employers have been forced to revise their hiring, choice, publicity, and expiration employment patterns in order to conform to Title VII.

The Equal Employment Opportunity Commission ( EEOC ) was created to implement attachment to the Act by employers and advance the pattern of detecting Title VII commissariats in the workplace. The EEOC has developed administrative guidelines which federal bureaus and employers must follow to stay in conformity with Title VII. In instances where those guidelines are non followed, the EEOC may convey suit in federal tribunal against the employer in inquiry. One such guideline, and the subject of this paper, involves pre-employment enquiries.

The EEOC? s pre-employment enquiry guidelines are designed to help employers in placing what types of inquiries are allowable and which should be avoided during the pre-offer or hiring phase. For illustration, EEOC counsel suggests that remarks made during the hiring procedure by employers sing the nature of an applier? s family name should be avoided. Such inquiring may go against the national beginning protection of Title VII and could be regarded as discriminatory.1 Similarly, inquiries? about job-related hurts or workers? compensation history are prohibited at the pre-offer phase. ? 2 On the other manus, many allowable applicant inquiries do be, and the EEOC does non keep employers from inquiring them. These scope from enquiries sing past applicant public presentation associating to occupation maps and work attending wonts to past or present illicit drug usage. The list of allowable inquiries is non thorough.

Possibly non surprisingly, employers do non ever welcomed these guidelines. Some believe that certain EEOC counsel policies do non reflect a practical application of the rules of Title VII and claim that the EEOC? goes manner excessively far? 3 in its demands for them to be considered sensible. In one controversial reading, ? the Equal Employment Opportunity Commission? s place is that an employer is precluded by [ EEOC reading of ] Title VII of the Civil Rights Act of 1964 from inquiring a possible employee about apprehension records. The principle behind this place is that apprehensions do non turn out guilt and that testing out appliers with apprehension records has an inauspicious impact on minorities. ? 4 Such a stance on the portion of the EEOC topographic points employers in somewhat of a dual bind so that? every phase in the hiring procedure can subject the employer to legal liability, including favoritism claims [ and ] negligent engaging. ? 5 We now turn our attending o the topic of favoritism in employment hiring.

Prejudiced intervention at the pre-offer phase of engaging by and large falls into one of two classs: disparate intervention and disparate impact. Disparate intervention can be defined as handling some people less favourably than others because of certain factors. Disparate impact involves patterns that autumn more harshly on one group than another and can non be justified by concern necessity.6 Race, colour, faith, credo, sex, age, matrimonial position, national beginning, mental or physical disablement, veteran position, or sexual orientation represent some of the grounds occupation appliers are subjected to favoritism. Note, that non all of these factors are lawfully protected from favoritism during the hiring procedure. The legal protection would depend upon assorted applicable province or federal jurisprudence and the single fortunes of the instance.

Because of it? s disparate impact upon minorities, oppugning an applier about his or her apprehension record has been determined to be a prejudiced pattern by the EEOC. Many facts support this claim since it is minorities who are arrested in Numberss disproportionate to their population representation within the general population. Harmonizing to 1998 US Census informations, while minorities entire 28.7 % of the US population, they account for about 34 % of the all apprehensions.

Figure 1: 1998 US Population Distributions by Race

In add-on, figures for the entire figure of national apprehensions during 1998 showed 66 % of the arrestees were white while 32 % were black ; yet inkinesss constitute merely 12.7 % of the population. ( US Census Data )

Figure 2: 1998 US Arrest Distributions by Race

Furthermore, Native Americans have systematically been arrested at about three times the Black rate and ten times the White rate, harmonizing to age-adjusted figures for 1950-1968.7 Such startling disparity in minority apprehensions with regard to the white bulk clearly do a instance for disparate impact.

Advocates of forbiding employers from inquiring appliers about their apprehension records hold that the danger of disparate intervention of persons besides buoys the demand for the current EEOC stance. They argue that oppugning appliers about their apprehension records, and establishing any engaging determination upon that information, posses a greater hazard for prejudiced maltreatment by employers than supplying any protection against engaging unsafe employees. The logic behind this place is based upon the observation that apprehensions are non tantamount to strong beliefs and can non, hence, automatically be assumed to set up an person as an employment hazard. ? Over 40 % of every 100 persons who are arrested for felonies are non prosecuted or have their instances dismissed at first visual aspect ( United States Department of Justice, 1987, in Miller, 1997 ) . So, UCR [ Uniform Crime Reports ] arrest statistics tend to make myths about who is unsafe and guilty. ? 8

Employer regulative duties are many these yearss, and merely as employers must avoid prejudiced hiring patterns, so excessively must they protect themselves against negligent hiring. These apparently contradictory demands? to properly look into employees at the pre-offer phase to avoid negligent engaging piece at the same clip forbiding employers from having and sing certain pertinent informations, such as apprehension records? topographic points employers in somewhat of a double-bind. Possibly adding to the confusion, some province Torahs really require employers to carry on background cheques for certain positions.9 These scenarios normally involve employees who provides place wellness services or work in public instruction school systems.

If an employee commits an illegal act in the public presentation of his or her occupation operation, a sensible probe responsibility criterion is widely believed to protect employers from legal liability with regard to negligent hiring. By and large the jurisprudence requires that employers have a responsibility to do a sensible probe of an applicant & # 8217 ; s fittingness before hiring.10 This is done to set up the likeliness of an applicant committing illegal Acts of the Apostless, which could moderately hold been predicted through a simple background cheque. ? The extent of [ this responsibility ] may change with the fortunes. For occupations in which an employee will hold entree to people & # 8217 ; s places or to sensitive information, a condemnable records cheque should be conducted. ? 11 Failure to carry on background cheques could ensue in liabilit

Y and punishments in ruinous sums for employers.

Questioning appliers about strong beliefs is non an wholly different affair for the EEOC or employers. The EEOC has interpreted the commissariats of Title VII and provided counsel for their usage as good. Convictions differ in nature from apprehension records in that a strong belief has resulted from due procedure, which has presumptively established an person? s guilt in respect to committee of a offense. Consequently, inquiries sing applicant strong beliefs and utilizing them to do hiring determinations are treated otherwise by employers based upon EEOC guidelines and applicable province Torahs.

While EEOC and province demands do do some allowances for the differing nature of strong beliefs, statistics like those for apprehensions, present grounds for concern by the EEOC because of the potency for disparate intervention and impact. Harmonizing to the UCR, of the about 15 million apprehensions for all discourtesies in the United States in 1998, there was a sum of 2 million felony strong beliefs in province or federal courts12. African Americans make up approximately 47 % of those convicted for felonies in province courts.13

Figure 3: US State Court Conviction

Beginning: FBI 1998 Uniform Crime Report

Alarmingly these statistics are steadily on the rise, and so excessively will the grade of disparate impact instances if employers are permitted complete freedom to do hiring determinations based simply on the being of a strong belief. Indeed, that a individual had an apprehension and strong belief history is non an automatic saloon to employment, the EEOC has said.14 For this ground, the EEOC has declared that an apprehension and strong belief history is non an automatic saloon to employment.

The EEOC holds that employers may inquire appliers about his or her strong belief history at the pre-offer phase but can merely see the strong belief in doing a hiring determination to the extent that the strong belief? bear [ s ] some relationship to the occupation in order to represent a sufficient ground non to engage. ? 15? For illustration, a coach company & # 8217 ; s refusal to engage a protected category applier with a individual recent DUI strong belief would be justified because the behavior underlying the apprehension, driving while intoxicated, is clearly related to the safe public presentation of the responsibilities of a coach driver, and occurred reasonably late. ? 16

The tightrope employers must walk to equilibrate their attachment to Title VII against protecting themselves from engaging unsafe employees promises to go on to make a complicated hiring procedure for employers. But worlds within our civilization and society clearly demonstrate a demand for protecting many from being disenfranchised from the work force by arbitrary and systemic patterns of favoritism in employment and the EEOC counsel makes the effort.

American public policy presently dictates that employers must lawfully detect the cardinal civil rights of possible appliers while at the same clip chorus from negligent hiring of unsafe employees or else face liability exposure, dearly-won judicial proceeding, and potentially ruinous fiscal punishments. The effort on the portion of public policy shapers, policy hatchet mans, and employers to strike a balance between at times viing duties will go on to dispute all concerned.

Footnotes

1? Employment Law for Business 2nd Edition? Bennett-Alexander, Pincus. Irwin/McGraw Hill. 1998. p. 305.

2? Hiring Without Lawsuits: Staying Within The Shrinking Boundaries of What Is Appropriate and Legal? Law Firm of Meckler Bulger & A ; Tilson Web Page. Downloaded 8 Feb. 2000. p. 12. ( hypertext transfer protocol: //www.bmbt.com/pubs/articles/hiring2.htm )

3 David Andrew Price ( Washington Legal Foundation ) , & # 8220 ; English-Only Rules: EOC Has Gone Too Far, & # 8221 ; USA Today, March 28, 1996 hypertext transfer protocol: //www.ncpa.org/pd/affirm/pdaa/pdaa17.html

4? Employment Interview Guidelines: Research Notes & # 8212 ; Arrest Records in Employment. ? The Catholic University Of America. Downloaded February 29, 2000. p. 1 ( hypertext transfer protocol: //counsel.cua.edu/Employ/Arrest_Records.htm. )

5? Hiring Without Lawsuits: Staying Within The Shrinking Boundaries of What Is Appropriate and Legal? Law Firm of Meckler Bulger & A ; Tilson Web Page. Downloaded 8 Feb. 2000. p. 1. ( hypertext transfer protocol: //www.bmbt.com/pubs/articles/hiring2.htm )

6? Grudge Policy And Procedures. ? University Of Massachusetts Amherst Equal Opportunity & A ; Diversity Office. Downloaded 17 March 2000.

hypertext transfer protocol: //www-nss.oit.umass.edu/eod/grievance.html

7? Alcoholism and Native Americans. ? John M. Stevenson. Downloaded 5 March 2000. p. 1.http: //www.geocities.com/Athens/Forum/9235/Alcohol.html

8? The Construction and Reinforcement of Myths of Race and Crime? . Matthew Robinson, Ph.D. , Appalachian State University. Downloaded 10 March 2000. p. hypertext transfer protocol: //www.appstate.edu/~robinsnmb/race.htm

9? Battling Negligent Hiring Claims. ? Business Owner? s Toolkit Web Site, CCH INC. 6 Feb 2000. p. 1. ( hypertext transfer protocol: //csi.toolkit.cch.com/text/P05_1515.asp )

10 Ibid. p. 1.

11 Ibid. p. 1.

12 FBI 1998 Uniform Crime Report hypertext transfer protocol: //www.fbi.gov/ucr/Cius_98/98crime/98cius22.pdf

13? The Construction and Reinforcement of Myths of Race and Crime? . Matthew Robinson, Ph.D. , Appalachian State University. Downloaded 10 March 2000. p. hypertext transfer protocol: //www.appstate.edu/~robinsnmb/race.htm

14? Battling Negligent Hiring Claims. ? Business Owner? s Toolkit Web Site, CCH INC. 6 Feb 2000. p. 1. ( hypertext transfer protocol: //csi.toolkit.cch.com/text/P05_1515.asp )

15? Case Study? Using Arrest Records? Business Owner? s Toolkit Web Site, CCH INC. Downloaded 28 Feb 2000. p. 1.

? Battling Negligent Hiring Claims. ? Business Owner? s Toolkit Web Site, CCH INC. 6 Feb 2000. p. 1. ( hypertext transfer protocol: //csi.toolkit.cch.com/text/P05_1515.asp )

16? Case Study? Using Arrest Records? Business Owner? s Toolkit Web Site, CCH INC. Downloaded 28 Feb 2000. p. 1.http: //csi.toolkit.cch.com/text/P05_1615.asp

Bibliography

Mentions

1. ? Employment Law for Business 2nd Edition? Bennett-Alexander, Pincus. Irwin/McGraw Hill. 1998

2. 42 U.S.C. ? 2000e 1-16

3. ? Hiring Without Lawsuits: Staying Within The Shrinking Boundaries of What Is Appropriate and Legal? Law Firm of Meckler Bulger & A ; Tilson Web Page. ( hypertext transfer protocol: //www.bmbt.com/pubs/articles/hiring2.htm ) 8 Feb. 2000.

4. Rosemary Alito. New Jersey Employment Law ( 2nd Ed. ) . Newark: New Jersey Law Journal, 1999.

5. ? Restrictions On An Employer & # 8217 ; s Ability To See Arrest Or Conviction Records Of A Job Applicant. ? Law house of Donahue, Gallagher, Woods & A ; Wood web page. ( hypertext transfer protocol: //www.donahue.com/HTML/frames/resour/1998_f.html ) 10 Feb. 2000.

6. ? Battling Negligent Hiring Claims. ? Business Owner? s Toolkit Web Site, CCH INC. ( hypertext transfer protocol: //csi.toolkit.cch.com/text/P05_1515.asp ) 6 Feb 2000.

7. ? Employment Interview Guidelines: Research Notes & # 8212 ; Arrest Records in Employment. ? The Catholic University Of America. hypertext transfer protocol: //counsel.cua.edu/Employ/Arrest_Records.htm. May 21, 1998

8. ? Alcoholism and Native Americans. ? John M. Stevenson. hypertext transfer protocol: //www.geocities.com/Athens/Forum/9235/Alcohol.html

9. ? Key Crime & A ; Justice Facts at a Glance? U.S. Department of Justice Bureau of Justice Statistics January 21, 2000 hypertext transfer protocol: //www.ojp.usdoj.gov/bjs/glance.htm

10. The Construction and Reinforcement of Myths of Race and Crime, Matthew Robinson, Ph.D. , Appalachian State University, Boone, North Carolina 28608

hypertext transfer protocol: //www.appstate.edu/~robinsnmb/race.htm

11. FBI 1998 Uniform Crime Report hypertext transfer protocol: //www.fbi.gov/ucr/Cius_98/98crime/98cius22.pdf

12. David Andrew Price ( Washington Legal Foundation ) , & # 8220 ; English-Only Rules: EEOC Has Gone Too Far, & # 8221 ; USA Today, March 28, 1996

hypertext transfer protocol: //www.ncpa.org/pd/affirm/pdaa/pdaa17.html

13. ? Grudge Policy And Procedures. ? University Of Massachusetts Amherst Equal Opportunity & A ; Diversity Office. Downloaded 17 March 2000.

hypertext transfer protocol: //www-nss.oit.umass.edu/eod/grievance.html