Only on the Straight and Narrow

Q: I only want employees on the straight and narrow. Is it ok to ask about arrest records on the application?

-Concerned about Cons

Oakland, CA

A: Asking about arrest records on a job application violates state law, according to Dean Fryer, Spokesperson for the CA Dept. of Industrial Relations. By including this information on an application, one can conclude that an employer decided the information was relevant to its employment decision.

Screening out all applicants who have been arrested – and possibly discouraging those who have been arrested from applying – can be illegal.

The reason is that in many regions African-Americans and Latinx are disproportionately likely to have been arrested.  So, while screening out applicants with arrest records does not appear discriminatory on its face, it could have a discriminatory impact on these minority groups. You can ask applicants about convictions (except those which have been sealed, expunged or statutorily erased).

Before tossing out every application showing a record of a conviction, I should warn you that courts have come to different conclusions regarding the discriminatory impact of screening out prospective employees based on their convictions. The better course of action is to screen out an applicant if—after you’ve considered the nature of the job, the seriousness of the offence and the length of time since it occurred, and it appears the applicant actually did engage in the conduct for which they were arrested—the individual cannot be trusted to perform the job. 

Q: I’ve decided to change careers. I’ve applied for several positions I am well qualified for. In interviews, I notice many of the applicants are younger. I still haven’t been hired. What can I do?

-Older But Wiser

A: There’s no doubt in my mind that the job market becomes a tougher place to be as you grow older. But, employers rarely inform applicants why they weren’t hired, so it’s hard to know if your age played a role. I suggest calling the hiring official or Human Resources Manager directly.

Reiterate your interest in the position, ask why you weren’t selected, and ask if there is anything you could do to increase your chances to be hired for future openings.

If they refuse to tell you or you are unhappy with their response, then contact the EEOC at 1-800-669-4000 to file a charge of age discrimination.

A survey by the AARP found 61 percent of workers ages 45 and older have seen or experienced age discrimination on the job. 

(This article was originally published in the column Watercooler Counsel. It has been included here with minor updates.) 

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