Can a prospective employer ask about your DUI?

Rights, Crime, Money, Traffic law

Whether it’s called driving under the influence or driving while intoxicated, a DUI or DWI conviction can impact more than your driving privileges and insurance rates. It might also affect your ability to get a job. Given the prevalence of DUI charges – statistics from the Centers for Disease Control and Prevention show that 1.1 million people were arrested for driving under the influence in 2015 alone – there are a lot of job seekers whose prospects are limited by their bad driving record.

So, what happens when someone with a DUI arrest or conviction applies for a new job? Can an employer ask, in writing on the application or in person during an interview, about the DUI? Is that person immediately disqualified? What’s allowed depends on several factors, including whether the job is in the public or private sector, where the job is located, and if the DUI relates to the essential functions of the job in question.

Ban the box

Ban the box, an initiative to prevent employers from having a question on the application about criminal history, has been building momentum in recent years. Ban the box laws remove the criminal history question from the initial application and delay, but do not eliminate, the running of a criminal background check. Ideally, banning the box gives applicants and employers a greater opportunity to discuss the candidate’s background and qualifications and to get more information about the circumstances and any mitigating factors related to the DUI.

According to the National Employment Law Project, over 150 cities and counties and 29 states have passed ban the box laws. Most of these laws apply to positions with public agencies or with contractors that do business with public entities. However, some jurisdictions have broadened the ban to cover private employers as well. In October 2017, for example, California expanded its ban the box law to cover all employers in the state with five or more employees. The California law goes into effect January 1, 2018.

Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) encourages employers to discuss the applicant’s history and make fair and consistent decisions about that history. When it comes to a DUI conviction, employers should consider if the offense impacts the applicant’s ability to perform the job in question. For example, a DUI would be directly relevant to a job driving a truck, but not necessarily to a position as a software coder.

In its guidance on the Consideration of Arrests and Conviction Records in Employment Decisions, the EEOC cites a landmark employment case from the United States Supreme Court, Griggs v. Duke Power Company. Following the principles set out in Griggs, the EEOC states that the application process should measure “the person for the job and not the person in the abstract.”


If you feel you’ve been unfairly denied a job or promotion because of a DUI arrest or conviction, you should consider consulting an employment attorney.