Is there a prohibition on asking whether someone has historically been arrested on job applications?

Question

It is common knowledge that many companies ask whether or not someone has been convicted of a felony on job applications. However, as a matter of curiosity, since someone arrested but found not guilty or having cause dismissed with prejudice is considered - well - not guilty, but nonetheless still carries a degree of stigma, I am wondering whether it is lawful to ask someone if they've been arrested or indicted, and specifically, what the law would be. Ditto to whether it is unlawful to discriminate on this basis.

Answer 1

This may be allowed, or prohibited, it all depends. At the federal level, there is no specific prohibition against asking this question, however it may be found to violate Title VII of the Civil Rights Act if the result discriminates in employment based on race.

At the state level (in Washington), WAC 162-12-140 gives examples of fair and unfair pre-employment inquiries. W.r.t. arrests, it deems such questions as fair under limited circumstances:

Because statistical studies regarding arrests have shown a disparate impact on some racial and ethnic minorities, and an arrest by itself is not a reliable indication of criminal behavior, inquiries concerning arrests must include whether charges are still pending, have been dismissed, or led to conviction of a crime involving behavior that would adversely affect job performance, and the arrest occurred within the last ten years. Exempt from this rule are law enforcement agencies and state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults. See RCW 43.20A.710; 43.43.830 through 43.43.842; and RCW 72.23.035.

In other words, asking just about arrests is unfair and illegal. You can look up the law of other states here. In California, you can't ask about an arrest until late in the process as part of an individualized investigation, and can't be an automatic "arrest? No job!" rule. In contrast, Arkansas has no prohibition against arrest as job disqualifier.