May a landlord factor a prospective resident’s arrest record in its resident selection criteria?
While there is significant case history on the issue of employers use of arrest records, there has been no authority ruling specifically upon the identical issue on the context of the Fair Housing Act. However, the courts have generally held that the disparate impact analysis applies under the Fair Housing Act. The Fourth Circuit Court has held that the same standards for discriminatory impact analysis applicable under TITLE VII applied to the Fair Housing Act. Therefore, it seems safe to conclude that the conclusions of the TITLE VII cases relating to arrest records would apply with equal force under the Fair Housing Act. Use of arrest records by property owners/managers would be susceptible to a challenge based on the Fair Housing Act.
May an employer factor a prospective employee’s arrest record in its employee selection criteria?
There are a significant number of cases considering the issue of whether use of arrest records in the employment content violates the federal statute prohibiting race discrimination in employment. A number of courts presented with the issue have held that the practice of considering arrest records has a desperate impact upon minority applicants. Under this analysis, an employment practice may be illegal even if there is no intent to discriminate. Where a desperate impact was established, the courts have uniformly rejected employer justifications for use of arrest records. According to the EEOC, asking if an applicant has ever been arrested violates Title VII.
What businesses are most sued in rape/sexual assault cases?
Multi family housing communities are prime targets named as defendants in 58% of rape/sexual assault cases filed. Hotels/Motels are named in 14% of suits and retail outlets in 7.3%.
Can an employer be exposed to negligent hiring liability because a job applicant’s previous employer withheld reference information?
No. A previous employer’s failure to be forth coming with reference information has no impact on a subsequent employer’s exposure to negligent hiring liability. Negligent hiring focuses exclusively on a prospective employer’s lack of difference in the hiring process.
Should employers or landlords accept a copy of raw data from criminal courts?
Absolutely not! Records of arrest have been deemed to be discriminatory and must not be factored into your decision making process. Do not receive, view, or maintain in your files raw data from the courts, arrest records or dispositions which do not result in a finding of guilt.
If I elect to not hire a prospective employee based on a consumer report, what notification is required?
Employers are required to send a PRE-ADVERSE ACTION NOTIFICATION and a POST-ADVERSE ACTION NOTIFICATION to any prospective employees who they choose not to hire.