Even today it is not unusual for an application form to ask if an applicant has ever been arrested on a criminal charge. Some add the caveat “other than for a minor traffic offense”; some do not. The Guidance, however, states that
The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. Even if an individual is charged and subsequently prosecuted, he is presumed innocent until proven guilty ....
Another reason for employers not to rely on arrest records is that they may not report the final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted) .... Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.
The example involves an African-American man arrested, but not prosecuted, for disorderly conduct when he accused a police officer of stopping him for ““driving while black” in a white neighborhood. If his employer found the arrest in a background check conducted after he sought a promotion and rejected him for that reason alone, Title VII would be violated.
The Guidance adds than an arrest “may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action.”It counsels employers to make a fact-based analysis of this issue. The example involves an employee fired by a school district after it found that his explanation of how he happened to have touched several young girls was not credible; he was also arrested on various charges. He argued that his firing was illegal because there was no conviction, but the EEOC concluded that Title VII was not violated because the employee was fired for the underlying conduct, not the fact of the arrest.