Federal Law
Although there is no federal law that clearly prohibits an employer from asking about arrest and conviction records, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups. As a result, employers generally should not use an applicant's criminal history as an absolute bar to employment.
There are two ways in which an employer's use of criminal history information may violate Title VII of the federal Civil Rights Act, which applies to employers with 15 or more employees. First, employers may not treat applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. Second, an employer's neutral policy or practice of excluding individuals based on certain criminal conduct may disproportionately screen out individuals of a particular race or national origin. Such an exclusion is unlawful unless the employer can show that it is "job related and consistent with business necessity."
Several state laws limit the use of arrest and conviction records by prospective employers. These range from rules prohibiting an employer from asking applicants any questions about arrest records to those restricting an employer's use of criminal history information in making employment decisions.