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Employer Asking About Arrests Or Criminal Convictions John F. Melton

Why can an employer ask if you have ever been convicted of a crime but not about your arrest?

-- Anonymous

A. 

Although it may vary from state to state, the principal reason why an employer does not ask whether or not you have ever been arrested is not necessarily because it is against the law to ask the question. The reason it is usually very dangerous for an employer to ask a potential employee whether they have ever been arrested is that it tends to have a disproportionate impact on minority applicants. An employer that asks people whether they have been arrested in an interview or on an application opens themselves up to a potential lawsuit based on race discrimination. The fact that the question was asked is not necessarily illegal, it can, however, be evidence in a discrimination case.

Many employers ask about convictions, and usually there is nothing wrong with them doing so. It is often a legitimate question to ask and will usually not open the company up to a discrimination lawsuit. An arrest simply requires probable cause, while a conviction requires the state to prove its case beyond a reasonable doubt, a much higher standard. Therefore, courts will often view asking about a conviction as legitimate, while asking about an arrest will often be viewed as discriminatory.

John F. Melton
Ross|Melton, P.C.
1104 San Antonio Street
Austin, Texas 78701
Austin employment lawyer

-- John F. Melton