Could a Maryland state agency ask every job applicant whether they had ever been fined, placed on probation, or sent to jail, even for jobs where that history wouldn't matter?

Plain-English summary

Maryland's Secretary of Personnel asked whether it was proper for the Division of Correction's job application to ask every applicant if they had "ever been fined, placed on probation or committed to a jail or prison." The Attorney General's answer was a qualified yes, with an important catch: state agencies could ask about and weigh criminal convictions in hiring, but the specific question on the form was written too broadly and needed to be narrowed.

The opinion explained that Maryland statute already let hiring authorities consider convictions without making them an automatic disqualifier, and separate law specifically required background checks and fingerprinting for correctional officer applicants. But the DOC's blanket wording risked improperly sweeping in criminal charges that had been legally expunged, which state law generally barred employers from asking about at all. The opinion recommended narrower, position-specific wording: ask most applicants only about unexpunged convictions, but ask applicants for firearm-carrying positions about expunged convictions too, since federal gun-possession law treats expunged convictions as still counting. Running through equal protection, due process, and federal Title VII case law, the opinion concluded Maryland's practice would survive challenge precisely because it tied conviction-based rejections to job relevance rather than imposing a blanket, position-blind ban on hiring anyone with a criminal record.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland state job application in the 1980s ask every applicant, regardless of the job, whether they had ever been arrested or convicted of anything?
No, according to this opinion. The Attorney General concluded that a blanket question like that swept too broadly and should be narrowed, and that inquiries into an applicant's criminal history were proper only if the past conduct would actually bear on fitness for the specific position applied for.

If a Maryland job applicant's criminal record had been legally expunged, could a state employer still ask about it or hold it against them?
Generally no, the opinion concluded, citing Article 27, §740(a)'s bar on employers questioning applicants about expunged charges, with one major exception: applicants for positions requiring a firearm still had to disclose expunged convictions, since federal gun-possession law treated an expunged conviction as a conviction regardless of the state-law expungement.

Would a Maryland hiring policy that automatically disqualified anyone with any criminal conviction, no matter the job, have held up in court?
No. The opinion concluded that absolute, across-the-board bans on hiring anyone with a criminal record had repeatedly been struck down as over-inclusive under equal protection, due process, and Title VII, and that a valid policy had to connect the type of conviction to the actual requirements of the specific job.

Background and statutory framework

Article 64A, §19 of the Maryland Code let a criminal conviction be considered in state hiring decisions without automatically disqualifying an applicant, and separate statutes and regulations specifically required criminal background checks and fingerprinting for correctional officers, correctional supervisors, and correctional administrators, with felony convictions bearing on job performance as grounds for rejection. Federal and state firearms law added a further layer, since federal law barred convicted felons from receiving or possessing government-issued firearms even after a state-law expungement, per the Supreme Court's Dickerson v. New Banner Institute decision. Cutting the other way, Article 27, §740(a) barred employers, including the State, from asking applicants about expunged criminal charges at all, and separate statutes provided that certain probation-before-judgment dispositions were not to be treated as convictions for employment purposes once successfully completed.

The opinion then worked through three independent legal limits on conviction-based hiring screens. Under equal protection, since public employment is not a fundamental right and people with criminal records are not a suspect class, courts apply rational basis review, which a wide range of federal cases upheld for job-specific criminal history restrictions (police officers, firefighters, security-sensitive roles) but struck down for absolute, position-blind bans that were not tailored to any legitimate job-fitness concern. Under due process, the opinion found no protected property or liberty interest was threatened by a quiet, non-stigmatizing refusal to hire, so long as the refusal did not foreclose other employment and rested on a reasonable link between the conviction and the job's requirements. Under Title VII, the opinion applied disparate-impact case law holding that a facially neutral criminal-record screen violates federal law unless the employer can show the screen is job-related and a business necessity, meaning Maryland's practice of tying conviction relevance to specific job duties, rather than a blanket bar, was the legally safer, and legally required, approach.

Citations

Statutes:

• Article 64A, §19 (criminal convictions considered but not an automatic bar to state employment eligibility)
• Article 41, §70B(g) (minimum qualifications for correctional officers, supervisors, and administrators)
• Article 27, §684(b) (classified service employment application)
• Article 27, §445(c) (firearm possession ban for persons convicted of crimes of violence)
• Article 27, §737 and §740(a), (c) (expungement of criminal records; ban on employer inquiry into expunged charges)
• Article 27, §292(b) and §292(b)(5) (probation before judgment for first-time controlled substance offenders; expungement effect)
• Article 27, §641 and §641(c) (general probation before judgment; discharge not treated as a conviction)
• Article 49B, §15(b) (example of a statute expressly including the State within the term "employer")
• COMAR 12.10.01.02B(4)(a) (Correctional Training Commission background investigation and felony-rejection standards)
• COMAR 12.04.01.01A(5)(a) (Police Training Commission background investigation standards)
• COMAR 06.01.01.471 (conviction of a crime involving moral turpitude as grounds for discharge of current state employees)
• U.S. Const. amend. XIV, §1 (Equal Protection and Due Process Clauses)
• Article 24 of the Maryland Declaration of Rights (state equal protection analog)
• 18 U.S.C. §922(h) and 18 U.S.C. App. §1202(a) (federal firearm possession disqualification for felons)
• 18 U.S.C. §925(a)(1) and 18 U.S.C. App. §1203(2) (government-issued firearm exception and its pardon requirement)
• Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e through 2000e-17, and §2000e-2, §2000e-2(e)(1) (disparate impact and business necessity standards)

Cases:

• Mayor & City Council v. State, 281 Md. 217, 223 (1977)
• Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983)
• Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976)
• Miller v. Carter, 547 F.2d 1314, 1321 (7th Cir.), aff'd by equally divided court, 434 U.S. 356 (1977)
• Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970)
• Dixon v. McMullen, 527 F.Supp. 711, 720 (N.D. Tex. 1981)
• Kindem v. City of Alameda, 502 F.Supp. 1108, 1111 (N.D. Calif. 1980)
• Butts v. Nichols, 381 F.Supp. 573, 579 (S.D. Iowa 1974)
• Carter v. Gallagher, 452 F.2d 315, 326 (8th Cir. 1971)
• DeVeau v. Braisted, 363 U.S. 144, 158-59 (1960)
• Board of Regents v. Roth, 408 U.S. 564, 577 (1972)
• Paul v. Davis, 424 U.S. 693, 711-12 (1976)
• Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971)
• Green v. Missouri Pacific R.R. Co., 523 F.2d 1290, 1295, 1298 (8th Cir. 1975)
• Richardson v. Hotel Corp. of America, 332 F.Supp. 519, 521 (E.D. La. 1971), aff'd mem., 468 F.2d 951 (5th Cir. 1972)
• Henly v. Prince George's County, 305 Md. 320, 336 (1986)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PERSONNEL

Constitutional Law—Employment Applications—Criminal Record—Equal Protection—Due Process—State Agencies May Inquire Into Prospective Employees' Criminal Convictions, But Only If Relevant To Particular Position For Which Application Is Made.

May 16, 1986

The Honorable John F. X. O'Brien
Secretary of Personnel

You have requested our opinion on the propriety of asking applicants for State employment whether they have "ever been fined, placed on probation or committed to a jail or prison." That question appears on an addendum to the State's standard employment application form used by the Division of Correction ("DOC") of the Department of Public Safety and Correctional Services.1

For the reasons given below, we conclude that State agencies may inquire into prospective employees' criminal convictions and may consider convictions in making hiring decisions. However, the particular question about which you inquire is phrased somewhat overbroadly and should be rewritten. We caution further that inquiries as to applicants' possible criminal records are proper only if past criminal behavior would have a bearing on the applicants' fitness for a particular position.2

I
Authority to Inquire Concerning Criminal Records

Article 64A, §19 of the Maryland Code prescribes the general effect to be given to criminal convictions incurred by applicants for State employment. That section provides:

"No person who has been convicted of any crime and who has served his sentence or has obtained his release by virtue of any pardon, full or conditional, on probation or release by conditional commutation of sentence, or by parole, shall be rendered ineligible, if otherwise qualified, by reason of the conviction, to take the [personnel] examination.... No person who has received an honorable discharge from the military or naval services or who has received a certificate of satisfactory completion of service and who is thereafter convicted of a crime may be entitled to the preference given to veterans. However, if any such person is, after the taking of any such examinations, certified by the Secretary of Personnel as eligible for appointment to any position, the appointing authority may consider the conviction in determining whether such person shall be given the appointment for which an eligible list has been requested."

Thus, a criminal conviction does not normally render an applicant wholly ineligible for State employment. Nonetheless, appointing authorities are authorized to take criminal convictions into account in making their hiring decisions. That authorization necessarily carries with it the authority to ask applicants whether they have been convicted of crimes. Indeed, the standard application for State employment issued by the Department of Personnel presently requests just such information for the purpose of determining applicants' eligibility for military veterans' preference.

In addition, the DOC has specific authorization for inquiry into criminal convictions. Under Article 41, §70B(g), "no person shall ... be given or accept a probationary or permanent appointment as a correctional officer, a correctional supervisor, or a correctional administrator,... unless such person satisfactorily meets minimum qualifications as may be determined by the [Correctional Training] Commission." The Commission's regulations concerning selection standards for those classifications require the hiring agency to conduct "a comprehensive background investigation which includes fingerprinting of the applicant and a search made of local, State, and national criminal record files." COMAR 12.10.01.02B(4)(a).3 Those regulations also provide that "[a] conviction of any State or federal felony which would adversely affect the applicant's performance of correctional duties is grounds for rejection by the Commission." Id.4

Accordingly, there is no question that State personnel law authorizes agencies in general, and the DOC in particular, to ask applicants about their possible criminal records. Moreover, for positions in which an employee would be required to carry firearms, other State and federal statutory provisions make such questions necessary.

Article 27, §445(c) prohibits the "possession of a pistol or revolver by any person who has been convicted of a crime of violence, or of any of the [handgun] provisions of [Article 27] or who is a fugitive from justice." Similarly, federal law prohibits the receipt or possession of firearms by a person who is under indictment for or has been convicted of a crime punishable by imprisonment for more than one year. 18 U.S.C. §922(h) and 18 U.S.C. App. §1202(a).

Under 18 U.S.C. §925(a)(1), the prohibition does not apply to the receipt of a firearm issued for the use of a government agency; however, under 18 U.S.C. App. §1203(2), that exception applies only if the recipient of the weapon has been pardoned and expressly authorized by the President or the Governor to receive and possess a firearm. Hyland v. Fukuda, 580 F.2d 977, 979 (9th Cir. 1978). Hence, a person who has a criminal record may be subject to prosecution for unlawful possession of a firearm even if the weapon was issued by a governmental agency as part of the necessary equipment for a particular job. Clearly, applicants for such positions must be asked for information concerning their criminal histories.

Nevertheless, the authority of State agencies to make such inquiries is not without limits. The scope of information that may be requested from most applicants is expressly limited by various provisions of State law. Further, constitutional provisions and federal statutes may prevent employers from asking about job applicants' criminal records at all, in some cases. We discuss each of these limitations below.

II
State Statutory Restrictions

Article 27, §737 provides for expungement of criminal records under certain circumstances, and Article 27, §740(a) prohibits employers, including the State, from questioning job applicants concerning criminal charges that have been expunged.5 Nor, under that provision, may refusal to disclose expunged charges ordinarily be the basis for rejecting a job applicant:

"An employer or educational institution may not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning criminal charges against him that have been expunged. An applicant need not in answering any question concerning criminal charges that have not resulted in a conviction, or in answering any questions concerning convictions pardoned by the Governor, include a reference to or information concerning charges that have been expunged. An employer may not discharge or refuse to hire a person solely because of his refusal to disclose information concerning criminal charges against him that have been expunged."

Article 27, §292(b) provides for probation before the entry of judgment against a first-time offender under the controlled dangerous substances laws. Upon the offender's satisfactory completion of that probation, the records of the arrest and conviction are to be expunged and "shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute or regulation or license or questionnaire or any other public or private purpose." Article 27, §292(b)(5). In addition, Article 27, §641 authorizes probation before judgment for a defendant who has been convicted or has pled guilty or nolo contendere to any other charge. Upon the defendant's fulfillment of the probation, he or she is discharged without a judgment of conviction. That discharge "is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime." Article 27, §641(c).

In light of these provisions, we believe that the particular question the DOC is using sweeps too broadly. Neither DOC nor any other State agency has authority to routinely ask every prospective employee for information concerning criminal records that have been expunged. We suggest that the question asked of most job applicants be altered to ask simply and directly whether the applicant has ever been convicted of a crime as to which the records have not been expunged.6

At the same time, applicants for positions that require the carrying of firearms should be asked for additional information concerning their possible criminal histories. Expungement of criminal records does not relieve a person of the disabilities as to possession of firearms imposed by federal law. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983). In Dickerson, an applicant for licensure as a firearms dealer had previously received probation before judgment under a state statute substantially identical to Article 27, §641. Notwithstanding the absence of an entry of judgment, the Supreme Court concluded that the applicant had been "convicted" within the meaning of the federal firearms statutes. 460 U.S. at 113. Subsequent expungement of the records of that conviction did not nullify it; hence, the applicant was disqualified by the conviction from possessing or dealing in firearms. 460 U.S. at 115.

In sum, State agencies generally have authority to ask job applicants for information concerning criminal convictions as to which the records have not been expunged. For positions that require carrying firearms, however, the hiring agency should also ask whether the applicant has ever been convicted of a crime constituting a felony for purposes of the federal firearms statute, even if the records have been expunged.

III
Equal Protection Restrictions

A hiring practice that takes account of applicants' criminal records obviously is not directed at all applicants equally. Rather, a particular group, those individuals who have been convicted of crimes, is singled out for special treatment, and its members might be barred from employment. Such a classification must not "deny to any person ... the equal protection of the laws" within the meaning of the Fourteenth Amendment to the United States Constitution. In our view, this State's present hiring practice would be sustained against a challenge under the Equal Protection Clause.7

Public employment is not a fundamental right. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976). Nor is the class of persons with criminal records a "suspect" class. Miller v. Carter, 547 F.2d 1314, 1321 (7th Cir.) (Campbell, J., concurring), aff'd by equally divided court, 434 U.S. 356 (1977). Accordingly, federal courts reviewing State laws that restrict the availability of employment opportunities on the basis of applicants' criminal records have consistently concluded that such a qualification need only have a rational connection with the applicant's fitness or capacity to perform the job. Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970); Dixon v. McMullen, 527 F.Supp. 711, 720 (N.D. Tex. 1981); Kindem v. City of Alameda, 502 F.Supp. 1108, 1111 (N.D. Calif. 1980); Butts v. Nichols, 381 F.Supp. 573, 579 (S.D. Iowa 1974).

Statutes barring former felons from employment as peace officers have, under that test, generally been held to be constitutional. For example, in Dixon v. McMullen, the court found such a statute to be narrowly tailored to address the legitimate state concern that "persons publicly employed in emergency or dangerous situations are sober and alert, and possess qualities such as honesty, integrity, reliability and obedience to the law." 527 F.Supp. at 721. Similarly, in Upshaw v. McNamara, the First Circuit noted that "a person who has committed a felony may be thought to lack the qualities of self control or honesty that this sensitive job [as a police officer] requires." 435 F.2d at 1190. See also Schanuel v. Anderson, 708 F.2d 316, 320 (7th Cir. 1983) (no equal protection violation in barring ex-felons for ten years from armed guard or investigator positions).

Such employment practices have also been upheld as applied to positions other than those of police officer or prison guard. For example, the Eighth Circuit has concluded that "conviction records, at least in cases of aggravated offenses and multiple convictions, may have a bearing on the suitability of an applicant for a fire department position." Carter v. Gallagher, 452 F.2d 315, 326 (8th Cir. 1971). See also Hetherington v. State Personnel Board, 147 Cal. Rptr. 300, 306 (Cal. App. 1978) (upholding constitutionality of statute prohibiting employment of ex-felons as police and law enforcement personnel, parole agents, probation officers, prison guards, or youth counselors). Cf. DeVeau v. Braisted, 363 U.S. 144, 158-59 (1960) ("Barring convicted felons from certain employment is a familiar legislative device to insure against corruption in specified, vital areas.").

Absolute and across-the-board prohibitions against the hiring of former criminals have been held to violate equal protection, however, on the ground that they are over-inclusive. For example, in Kindem v. City of Alameda, 502 F. Supp. 1108, 1112 (N.D. Cal. 1980), such a provision in the city's charter was invalidated on the ground that it was "not tailored along any lines to conform to what might be considered legitimate government interest." At the same time, the court carefully delineated the scope of its holding:

"This is not to say that a prior felony conviction can never be a factor in public employment decisions. It is reasonable to assume, for example, that the prior conviction might be highly relevant or properly determinative with respect to hiring decisions involving certain sensitive jobs. It may also be reasonable to assume that convictions for certain crimes may indicate that an individual is unfit for any future municipal employment." Id.

Similarly, in Butts v. Nichols, 381 F. Supp. 573, 580 (S.D. Iowa 1974), a three-judge federal district court invalidated on equal protection grounds a prohibition against hiring ex-felons for any state civil service position.8 Nonetheless, the court affirmed the appropriateness of a more narrowly drawn prohibition: "There is no doubt that the State could logically prohibit and refuse employment in certain positions where the felony conviction would directly reflect on the felon's qualifications for the job (e.g., conviction of embezzlement and a job requiring the handling of large sums of money)."9

These cases make it clear that State agencies may refuse employment to persons who have been convicted of crimes if, but only if, the nature or frequency of the individual applicant's convictions has a bearing on his or her fitness for a particular position.

IV
Due Process Restrictions

A law, regulation, or policy restricting the hiring of convicted criminals must not "deprive any person of life, liberty, of property, without due process of law." U.S. Const. amend. XIV, §1. "The substantive aspect of due process protects individuals from arbitrary or irrational action on the part of the state." Kindem v. City of Alameda, 502 F.Supp. at 1113. Due process is violated when such action deprives the individual of an interest in property or liberty.

Applicants for State employment have no property interest in that employment, for they have no claim of entitlement to it. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Therefore, the State's refusal to hire persons with criminal records would not deprive those persons of any protected property interest. See 67 Opinions of the Attorney General 322, 327 (1982) (rule prohibiting hiring of drug abusers would not impair any protected property interest).

Nor, in our view, does the State's present practice of taking convictions into account in making its hiring decisions impair any liberty interest of prospective employees. A deprivation of liberty occurs when the State imposes on the individual a stigma that alters or extinguishes a right or status previously recognized by State law. Paul v. Davis, 424 U.S. 693, 711-12 (1976). Thus, a violation of due process would arise if the State, in refusing to hire a job applicant, imposed on the applicant a stigma that foreclosed opportunities for future employment. Board of Regents v. Roth, 408 U.S. at 573-74.

In merely declining to hire a particular person, without publication of the reason, the State imposes no stigma at all. Nor does the State's refusal to hire former criminals for particular positions prevent those persons from obtaining employment in other positions or with other employers. Hence, such a refusal does not violate due process.

In reviewing a proposed absolute ban on hiring drug abusers, we noted that the validity of such a ban would be subject to "some small doubt," in that a "skeptical" court might view the ban as inadequately correlated to job performance requirements. 67 Opinions of the Attorney General at 328. Even so, we concluded that the proposed hiring ban would likely be upheld. Id.

We think that the State's current practices with regard to hiring former criminals are not subject to even that small doubt. Persons with criminal records are not subject to any absolute ban on their hiring in all State employment positions. Moreover, the DOC regulations under which some former criminals are precluded from some positions are expressly tailored to limit such preclusion to crimes that would "adversely affect the applicant's performance of correctional duties." COMAR 12.10.01.02B(4)(a).10 Courts that have found due process violations in prohibitions against hiring former criminals have done so where the prohibition was applicable to all governmental positions, regardless of their job performance requirements, and did not take account of the nature of the crime for which the applicant had been convicted. See, e.g., Larry v. Lawler, 605 F.2d 954, 958-59 (7th Cir. 1978); Kindem v. City of Alameda, 502 F.Supp. 1108, 1113-14 (N.D. Calif. 1980). Cf. Thompson v. Gallagher, 489 F.2d 443, 447 (5th Cir. 1974) (flat ban on city's hiring of persons with less than honorable military discharges violated due process).

Thus, the refusal of State agencies to hire former criminals does not violate due process if, but only if, that refusal does not foreclose other employment opportunities and is based on a reasonable relationship between convictions of particular types of crimes and the requirements of particular jobs.

V
Federal Statutory Restrictions

Federal administrative agencies and courts enforcing equal employment opportunity laws presume, with reason, that information requested on an employment application is likely to be used as the basis for hiring decisions. The Equal Employment Opportunity Commission ("EEOC") further reasons that, even if the information requested is not used in employment decisions, the mere request may discourage those who would be required to disclose potentially unfavorable information from completing the application.

Therefore, questions asking for information that, if made a factor in employment decisions, would tend to disqualify members of a protected minority in significantly greater percentages than the rest of the population are generally held to be discriminatory. Costa v. Markey, 706 F.2d 1, 5 (1st Cir. 1982). Such questions are justified only if the employer can demonstrate the "business necessity" for the requested information, that is, its job-relatedness. See 42 U.S.C. §2000e-2(e)(1). In essence, an employer must prove that it needs the information in order to conduct business safely and efficiently.

In general, employment applications should solicit only information that is actually relevant to hiring decisions. The EEOC guide on preemployment inquiries states:

"In devising or reviewing application forms or in seeking information from job applicants, employers should ask themselves: (1) Will the answers to this question, if used in making a selection, have a disparate effect in screening out minorities and/or members of one sex (i.e., disqualify a significantly larger percentage of members of a particular group than others)? (2) Is this information really needed to judge an applicant's competence or qualification for the job in question?" EEOC Guide to Pre-Employment Inquiries, Fair Employment Practices Manual, 443:65 (1982).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e through 2000e-17, prohibits an employment practice, even one that is neutral on its face, if it has a disproportionate adverse impact on persons of a certain race, color, religion, sex, or national origin unless the practice can be shown to be directly related to job performance. 42 U.S.C. §2000e-2; Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971). On that basis, an absolute ban on employment, in any position, of any person convicted of a crime other than a minor traffic offense has been held to be unlawful: The ban had a disparate impact on blacks, and there was no evidence that the policy was related to job performance or justified in terms of "business necessity." Green v. Missouri Pacific R.R. Co., 523 F.2d 1290, 1295, 1298 (8th Cir. 1975).

Nevertheless, a refusal to hire former criminals does not violate Title VII when the employer can show that past criminal conduct has a bearing on fitness for a particular position. For example, "a prior conviction of a serious offense would be a valid ground to disqualify a person from police work. And this would be so regardless of the disproportionate racial impact such a standard might have." United States v. City of Chicago, 411 F.Supp. 218, 235 (N.D. Ill. 1976).

Similarly, it has been held that a private employer may reject applicants for employment in "security sensitive" positions if they have been convicted of serious crimes. Richardson v. Hotel Corp. of America, 332 F.Supp. 519, 521 (E.D. La. 1971), aff'd mem., 468 F.2d 951 (5th Cir. 1972). In that court's view, "[i]t is reasonable for management of a hotel to require that persons employed in positions where they have access to valuable property of others have a record reasonably free from convictions for serious property related crimes." Id. See also Washam v. J.C. Penney Co., 519 F. Supp. 554, 561 (D.Del. 1981) (in trial of Title VII claim, defendant may prove convicted felon is unqualified to serve as security manager because holder of position must testify as witness). Cf. Lane v. Inman, 509 F.2d 184, 186 (5th Cir. 1975) (prohibition against issuing taxi driver's permit to person convicted of smuggling drugs is "obviously job-related in determining who is to be entrusted to operate taxicabs").11

Hence, State agencies do not violate Title VII by refusing to hire job applicants with criminal convictions in particular positions, if those convictions have a bearing on fitness for those positions. Cases decided under Title VII also make it clear that State agencies should request information about convictions only if a conviction is relevant to the particular position for which application is being made. As the EEOC has summarized: "Federal courts have held that a conviction for a felony or misdemeanor may not by itself lawfully constitute an absolute bar to employment, but that an employer may give fair consideration to the relationship between a conviction and the applicant's fitness for a particular job." EEOC Guide to Pre-Employment Inquiries at 443:67.12

VI
Conclusion

In summary, it is our opinion that State agencies may inquire into prospective employees' criminal convictions, but only if past criminal activity has a bearing on fitness for the particular position for which application is being made.13 Applicants for positions that require the carrying of firearms, but only applicants for those positions, should also be asked for information about past criminal activity as to which the court and police records have been expunged.

Stephen H. Sachs
Attorney General
Bruce P. Martin
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 The addendum pertains to a form used in the hiring of officers and employees in the classified service. See Article 27, §684(b) of the Maryland Code. However, our analysis would apply as well to the hiring of persons outside the classified service.

2 You have also asked for general advice on the kinds of questions that may be asked of applicants for State employment. As a general rule, employers may ask only for information that is related to the particular position for which application is being made. Thus, the principles that govern determination of the propriety of asking about applicants' criminal history are equally applicable to other questions. The propriety of any particular question, accordingly, will in most cases turn on the nature of the position as to which it is asked. While, in consequence, we cannot provide you definitive advice as to every possible question, we would be happy to review particular questions and advise you as to their legality.

3 Regulations of the Police Training Commission likewise authorize a background investigation of applicants for the position of police or security officer. If the investigation reveals that an applicant "has been convicted of any felony or misdemeanor for which a sentence of more than 1 year may have been imposed[,]... [t]he Commission may reject the employment of the applicant after it has reviewed the facts." COMAR 12.04.01.01A(5)(a).

4 The Correctional Training Commission has proposed amendments to increase the specificity of these provisions. Under the proposed regulations, conviction of "any State or federal offense which would adversely affect the performance of an applicant" is a ground for the applicant's rejection for the position of non-uniformed institutional support staff, classification counselor, or parole or probation agent. 13 Md. Reg. 556 (February 28, 1986) (to be codified at COMAR 12.10.01.02B(4)(a)). Applicants for positions as uniformed correctional officers would be disqualified by recent or repeated convictions of described types of crimes, for the most part crimes of violence or dishonesty.

5 The term "employer" in Article 27, §740(a) is not defined. Ordinarily, the State is not included in general terms of this kind unless the statute so provides expressly: "[I]t is a basic and long-standing principle of statutory construction that the State is not deemed to be bound by an enactment of the General Assembly unless the enactment specifically names the State or manifests a clear and indisputable intention that the State is to be bound." Mayor & City Council v. State, 281 Md. 217, 223 (1977). See also Town of New Roads v. Dukes, 312 So.2d 890 (La. App. 1975) (state not an "employer" under statute regulating labor relations). Cf. Article 49B, §15(b) (term "employer" expressly includes the State). However, the penalty in Article 27, §740(c) for violations of "this section" refers to State officers and employees, and from this we infer an intent to apply the substantive prohibition in Article 27, §740(a) to the State.

6 It would also be advisable to include a statement making clear to applicants that a criminal record is not an absolute bar to eligibility for State employment. We suggest the following: "A conviction record will not necessarily bar you from employment. Each application will be individually considered on its own merits, taking into account such factors as the nature and seriousness of the violation, how long ago it occurred, and rehabilitation."

7 Such a practice must also comply with the Equal Protection principle of Article 24 of the Maryland Declaration of Rights. We believe, however, that the Court of Appeals would reach the same result in applying Article 24 as it would in applying the Equal Protection Clause. See Hornbeck v. Somerset County Board of Education, 295 Md. 597, 640 (1983) (Article 24 and Equal Protection Clause are in pari materia and generally apply in a like manner and to same extent). Accord State v. Good Samaritan Hospital, 299 Md. 310, 326 n. 7, appeal dismissed, 469 U.S. 802 (1984).

8 The court also found that statute impermissibly arbitrary because it, by its terms, did not apply to positions exempted from the civil service, including such responsible positions as city solicitor, treasurer, auditor, assessor, and city manager. 381 F.Supp. at 581.

9 The Seventh Circuit has suggested that statutes restricting the employment of former criminals must afford prospective employees equality of treatment with current employees. That court invalidated a statute that prohibited the issuance of a taxicab driver's license to any person convicted of designated crimes but did not automatically revoke a previously issued license upon conviction of those crimes. Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir.), aff'd by equally divided court, 434 U.S. 356 (1977). In that court's view, such a distinction among former criminals convicted of the same crimes is irrational. Id. Even assuming that the Seventh Circuit was correct in concluding that there is no rational basis for a distinction between current and prospective employees as to the effect of a conviction, we do not think the administration of personnel matters in this State creates such a distinction. Under Article 64A, §19, convictions are taken into account in hiring but may not ordinarily be made an absolute bar to the hiring of a prospective employee. As to current employees, conviction of a crime "involving moral turpitude" is a ground for discharge, but does not automatically lead to discharge. COMAR 06.01.01.471. Thus, convictions have essentially the same effect for both present and prospective employees of the State.

10 See also note 4 above. The more specific regulations that have been proposed by the Correctional Training Commission would, in our view, be even less vulnerable to attack because they clearly are closely correlated to the requirements of the positions to which they would apply.

11 Indeed, in certain circumstances employers may be obligated to make inquiries into an applicant's criminal background. The Maryland Court of Appeals has held that, under the "negligent hiring" doctrine, an employer has a duty to "use reasonable care to select employees competent and fit for the work assigned to them" in order to protect other individuals who might reasonably be expected to come into contact with the employee in the performance of his duties. Henly v. Prince George's County, 305 Md. 320, 336 (1986). See Cramer v. Housing Opportunities Comm'n, 304 Md. 705 (1985). Whether a particular hiring decision may be considered "negligent" depends upon a number of factors, including the nature of the applicant's crime, the job, and the level of risk to others. For example, entrusting building security functions to an individual convicted of a serious and violent crime might well be considered negligent. See Henly, 305 Md. at 336.

12 The EEOC advises that questions about criminal convictions should be accompanied by a statement such as we suggest in note 6 above.

13 A like conclusion was reached in 57 Opinions of the Attorney General 335 (1972), regarding the extent to which the Department of Licensing and Regulation may take an applicant's criminal record into account in evaluating an application for a license: "[W]hen any of the [licensing] agencies ... relies upon the conviction of a crime as a basis for disqualification that crime must bear a reasonable relation to the type of license under consideration." 57 Opinions of the Attorney General at 339.