Federal law does not flatly ban it, but under EEOC guidance an arrest alone does not prove someone committed a crime. An employer may consider the underlying conduct, and some states and cities restrict using arrest records. The background check itself must also be accurate and complete.
Two different sets of rules come into play: anti-discrimination law, which governs how an employer uses criminal history, and the Fair Credit Reporting Act, which governs what a screening company can report and what the employer must do before acting on it.
What the EEOC has said
In its 2012 enforcement guidance under Title VII, the Equal Employment Opportunity Commission took the position that an arrest record alone is not evidence that a person engaged in criminal conduct. An employer may act on evidence of the underlying conduct if that conduct makes the person unfit for the specific job. The EEOC also described a targeted screen that considers at least:
- the nature and gravity of the offense or conduct,
- the time that has passed, and
- the nature of the job.
The EEOC encouraged giving a flagged person a chance to show why the exclusion should not apply to them. Its guidance is not binding law, but it explains how the agency evaluates criminal-record screening.
State and local rules
Some states and cities limit or prohibit employers from considering arrests that did not lead to a conviction, or require that criminal history be considered only later in the hiring process. These rules vary, so check the law where the job is located.
What the FCRA adds
- Age limits. Arrest records generally cannot be reported once they are more than seven years old, unless the job pays $75,000 or more a year (§ 1681c).
- Complete and current records. Under § 1681k, a screening company reporting criminal records for employment must report their current status, such as a dismissal, or notify you at the time it reports them.
- Notice before rejection. The employer must give you a copy of the report and a summary of your rights before taking adverse action (§ 1681b(b)(3)).
If you were rejected based on an arrest that was too old, already dismissed, or not yours, a free case review can help you understand your options under the FCRA, with no fee unless we win.
Related
Sources
- EEOC: Questions and Answers About the Enforcement Guidance on Arrest and Conviction Records
- 15 U.S.C. § 1681c (Cornell LII)
- 15 U.S.C. § 1681k (Cornell LII)
- 15 U.S.C. § 1681b (Cornell LII)
Updated November 2026. This page is general information, not legal advice.