How is it legal to ask "have you ever been arrested"???

On employment forms, government forms, etc many of them ask "have you ever been arrested or convicted of....."

If you were arrested but not convicted, how is that any of anyone else's business? Presumably they ask about arrested OR convicted because if you were not convicted they still want to know about it. But given that if you were not convicted then the due process of law found you not guilty, then how can the mere fact you were arrested be held against you?

Lets say cop has an attitude and arrests person for disorderly conduct. Person goes to court, charges are dismissed. Person goes on with their life. 5 years later when applying for a visa it asks if you have ever been arrested - you must say yes?

It would appear the due process of law was followed and you were cleared. So how can one be expected to carry the burden or stigma with them for life given due process relieved them of any guilt (or even any charges)??? How is this legal/legit/fair????

 

Ok, forget about employment.

What about government forms? And I am not talking about things like applying to be a state trooper or FBI agent, I am talking about things like travel visas, passport applications, firearm applications, etc, etc. Why are they allowed to ask? Due process has been served, and a conviction is a conviction and anything less is not a conviction.

What if one were denied employment or denied any other service/priviledge based on the fact they had been arrested? For example, if you were denied a government job, or denied a firearm permit, or denied a travel visa based on an arrest that did not lead to a conviction.

It seems bizarre to me that an allegation (which is what an arrest is) can be used to discriminate against people. It seems this would be a huge no-no especially for government/official things. Can arrests be expunged and if so, do you still have to answer that you were arrested or can you legally say "nope"???

Lest this provoke thoughts of nefarious things, the reason I ask is that a friend of mine is coming to visit. He was arrested a year ago because he was pickpocketed by a man/woman team. The woman pickpocketed him and ran, he tackled her and the man came over, turned into a wrestling match/fight on the ground. Cops were right there and arrested everyone. Some hours later he was released with no charges ever being filed (by choice of the prosecutor).

In addition, I was arrested many years ago for reckless driving for being caught going 92 in a 65. Cop wanted to make a point to a 17 year old kid and gave me the full treatment. When I went to court, the case was dismissed on the first appearance. But when I was applying for a firearm permit, it asked if I had ever been arrested. How can they legally use this as a basis for denying a permit given that an arrest is not proof of anything? I mean, a cop could arrest someone for assault and battery, knowing that they will lose their firearm permit - even if you never assaulted anyone and were just walking down the street with your kids. Granted thats extreme, but it makes the point.

So how can an arrest that never led to a plea, or a conviction, or probation, etc be used as the basis to deny something to someone (ok, outside of private entity/right to work stuff)???

 

Thats my point exactly.

I have never had a problem due to my previous deal, but I think it appears wrong that they can even use it as a basis for anything. An arrest is just an accusation of wrongdoing. If the charges are dismissed, its sort of like saying "wel you didnt do anything after all" and the person should suffer no consequences. If an arrest causes someone to lose anything (a job, a visa, anything) then it appears that person has been "convicted" without due process and should have some recourse. And if the fact that someone was arrested is not being used as a disqualifier for something, then they have no need to even ask about it.

 

Interesting.

So what would it be that makes it an illegal question? I know that you cannot discriminate based on age, sex, race, etc even in right-to-work states, but what specifically is illegal about asking? My beef with it is that it denies the person the due process of law. Sort of like asking "has anyone ever said you stole something" instead of "have you ever stolen something?". The state has created a justice system that starts with an arrest, then an arraignment, then a trial, then a conviction or a dismissal or an aquittal. For a private entity to pick-and-choose parts of that system (that people have little control over) and use it as a determinant to employment would seem to be unfair at least, and in my view *should* be illegal. If it actually *is* illegal I would love to know why, specifically.

Then again, if you answered "no" when the truth was yes, then they would have grounds to not hire you based on lying on the form. If you were truthful the stated reason could easily be "we found someone else - thanks anyway" and you'd probably never know why.

 

I did a little more research on this.

According to the Civil Rights Act of 1964, arrests cannot be used as a sole basis for denying employment. It states

"…since the use of arrest records as an absolute bar to employment has a disparate impact on
some protected groups, such records alone cannot be used to routinely exclude persons from
employment."

it goes on to state...

"arrests alone are not reliable evidence that a
person has actually committed a crime… to justify the use of arrest records, an additional
inquiry must be made. Even where the conduct alleged in the arrest record is related to the
job at issue, the employer must evaluate whether the arrest record reflects the applicant’s
conduct…"

It also states that "an additional inquiry" must have a high burden of proof upon the employer because the arrest alone cannot be used to make the determination. It concludes that "an employer is seldom able to justify the use of broad general questions regarding an employee’s or applicant’s arrests."

Case law makes it even more clear, stating that "have you ever been arrested?" is an unlawful question, and suggests it be phrased such as "Have you ever been convicted of a crime? If so, when, where and what was the disposition of the case?"

Furthermore, many states have laws preventing employers and government or business entities from asking about arrests. In my research, it is illegal to ask about arrests (that did not lead to a conviction or are not arrests which have charges pending) in many states like California, Massachusetts, New York and many others. Actually the only state I found out of 10 I looked up that allows employers to ask about arrests is Wisconsin, but they state that it is against the law to use such information as a basis for employment, and that employers asking such questions are exposing themselves to a lot of liability for a discrimination lawsuit.



So, the bottom line is that in most states, the employer CANNOT ask if you have ever been arrested - it is specifically illegal to ask that. In *some* states, they can make the case that its justified to ask (but there must be *substantial* need to ask) and they are not allowed to use an arrest as a sole determinant of whether you should be employed. It can only be used as a factor if an independent investigation is held and its determined that the applicants actions/behaviour would cause a problem in their job.

 

Check my 2nd post - its just something I started to think about after a friend of mine was applying for a travel visa and was asked if he had ever been arrested (not convicted). I found it to be overly intrusive of a question, and recalled times when its asked about on job applications. Turns out its illegal to ask it.

As for "so what are you going to do?".... well, if you were applying for a job and they asked you to write your age, race, and list all physical handicaps, and you were a 60yo black man in a wheelchair, you may find the questions discriminatory - because they are. You could not fill them out and if it raised questions during the hiring process you would have a valid complaint for discrimination against the company. I dont agree that they will ask even though they shouldn't... I bet some companies are not aware of the legalities of it and IMO if someone asks you to do something illegal that you are uncomfortable with, you have every right to say NO without penalty or repercussions.

 

I honestly dont know - I havent checked into it. Maybe it doesnt show? I have heard there are different levels of check. I.e. the check an employer can do is a lot different than the check that the CIA could do. It wasnt that it affected me, but rather a friend looking for a visa to travel here. I started to think about it and I recalled times I was asked about being arrested, and thought it may well affect me after all. Seems like a lot of places are asking when they shouldn't be!

 

LOL!

Actually I didnt vote for them

I'm right up on the border with NH. I am planning to build a new industrial building maybe next year and move my business just over the border (and coincide that with the home I am looking to buy there). Then I can start amassing a collection of cannons, rocket launchers and machine guns.

The city I live in is ultra Nazi about gun permits anyway. The police chief told me "we just dont give them out - to ANYONE except LEOs". "May issue" is taken to an extreme by this guy - and unfairly too. Luckily the city I own a business in is a lot more lenient and recognizes peoples rights.