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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII/Race/National Origin/Hiring/Criminal Record

April 4, 2013

Dear    :

This is in response to your letter to the United States Equal Employment Opportunity Commission (EEOC), dated March 6, 2013. You stated that you have been excluded from employment because you have an arrest record. A notice of "Nolle Prosequi" was issued to you providing that the prosecutor dismissed charges after you completed a Misdemeanor Intervention Program. You never pled nor were found guilty of the alleged conduct.

The EEOC enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), which prohibits employment discrimination on the bases of race, color, sex, religion, and national origin. Consideration of arrest records in employment decisions may raise issues under Title VII, either if an employer discriminates between job applicants with the same or equivalent arrest records, or if an employer's reliance on arrest records disproportionately excludes members of a protected class. Disqualifying applicants because of arrest records may disproportionately exclude African-Americans and Hispanics. Such a disproportionate exclusion is not automatically discriminatory under Title VII. If the employer shows that the exclusion was factually justified -- given the severity and timing of the underlying conduct and the nature of the job itself – there is no discrimination.

However, the fact of an arrest record, in itself, does not establish that the alleged conduct occurred. Arrests are not proof of criminal conduct, and many arrests do not result in criminal charges or prosecution. Therefore, where members of a protected class are disproportionately excluded, an arrest record, standing alone, may not be used to deny an employment opportunity. In some circumstances, knowledge of an arrest may trigger an inquiry into the underlying conduct. An employer may make an employment decision based on conduct underlying the arrest if this conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes. Employers should provide an opportunity for the individual to correct mistaken facts or provide an explanation before making a final employment decision. See Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 at V.B.2. (Examples 3 and 4 and accompanying text).

For additional information, we have attached the full text of this Guidance:

You also stated that age discrimination is widespread in Florida. For general information on age discrimination, please visit our website at If you seek employment and believe that you have been discriminated against, you may file a charge with the EEOC. You may call 1-800-669-4000 to locate the EEOC field office nearest to you.

You may also contact the Florida Commission on Human Relations to determine your rights under Florida law at:

Florida Commission on Human Relations
2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301

We hope that this information is helpful. Please note that this letter does not constitute an opinion or interpretation by the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b).


Carol R. Miaskoff
Assistant Legal Counsel

This page was last modified on May 7, 2013.