Using Arrest Records In Hiring Essay Research

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Using Arrest Records In Hiring Essay, Research Paper 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 indicidual?s 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 applicant?s 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 Commission?s 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