As most employees and employers are aware, a standard employment application normally includes a box or line item for the applicant to document whether he/she has ever been convicted of a crime. In the employment relations realm, however, there exists a growing initiative to “ban-the-box” – meaning that job applications no longer ask about one’s criminal history.
Nearly ten states have adopted ban-the-box policies; among these, five states instituted the law in 2013. Each state’s laws vary. For example, some ban-the-box policies apply only to public employers, while others apply to both public and private employers. Recently, Target announced that it will eliminate the box from its applications nation-wide in 2014. Wal-Mart removed its box in 2010. At the federal level, the Equal Employment Opportunity Commission (EEOC) announced the following in a 2012 Enforcement Guidance Memorandum: “As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
Ban-the-box proponents believe that individuals with a criminal history have a better chance to attain employment if not eliminated immediately from the pool based solely on the application. By removing the box, these individuals may apply for positions which they would not normally consider because of their past, and may have more confidence in an interview setting. Additionally,ban-the-box proponents assert that by excluding those with a criminal history from the hiring process, employers may be unconsciously excluding certain populations at a disproportional rate. According to ban-the-box proponents, the elimination of the criminal history box or line encourages individuals to get their foot in the employment door, and helps alleviate the public stigma against criminal offenders.
Should other employers follow Wal-Mart and Target’s lead to ban-the-box? Check back next week for more on this topic.
 Statewide Ban the Box: Reducing Unfair Barriers to Employment of People with Criminal Records, National Employment Law Project, November 2013.
Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached firstname.lastname@example.org or at (859) 231-8780, ext. 300.
This article is intended as a summary of federal and state law and does not constitute legal advice.
If you are an employer which uses criminal background checks as part of your decision process in deciding whether to hire an applicant, you should be aware that on April 25, 2012 the U.S. Equal Employment Opportunity Commission (EEOC) issued a new Guidance (EEOC Enforcement Guidance No. 915.002) which further clarifies under what circumstances such a practice may in fact be viewed as discriminatory. While the use of criminal background checks to screen applicants may seem like a colorblind endeavor, the EEOC has outlined via its Guidance when that activity can have an unlawful impact on certain groups of job applicants. This finding is based upon the EEOC’s noted findings, based upon historical data, that different races are incarcerated at different rates, making a prohibition on not hiring anyone with a conviction a prohibition which is more limiting to African-American applicants as opposed to Caucasians for example. Because of this new clarification on the potential unlawful effects criminal background checks may have, employers generally need to once again examine their hiring policies to make sure that they will not run afoul of the law even if one’s motive in conducting criminal background checks is pure.
In issuing its Guidance the EEOC has emphasized that even where criminal records exclusions are applied uniformly by an employer, the exclusions may still “disproportionately and unjustifiably” exclude people of a particular race or national origin. To avoid them being in violation of Title VII of the Civil Rights Act of 1964 an employer should then generally not have a global prohibition as not hiring anyone with a criminal conviction. Rather a list of prohibited convictions should be prepared based upon the position, and it should be documented, as part of the hiring process, how the exclusion for hiring a person with such a conviction is related to the position being filed and “consistent with business necessity” for the position. In this way if an applicant is excluded from a job based upon a criminal conviction it will be clear as to why that criminal conviction is prohibitive to the position being filled. Additionally, the EEOC has emphasized that even in instances where there is a past conviction for a crime of relevance; mitigating factors should also be taken into account to avoid possible disparate treatment or impact. For instance, the age of the conviction may make it irrelevant and an inappropriate consideration.
In its Guidance the EEOC has also provided a list of best practices which are an excellent resource for setting up a policy regarding the use of criminal background checks which will not be discriminatory in its effect. The key recommendation therein is that an employer should develop a “narrowly tailored written policy and procedure” for screening job applicants and employees. If this policy and procedure makes distinctions based upon the job being filed and the unique requirements of each position, then the company it is more likely to be in compliance with the law. In conclusion, if you are an employer who has not adopted a written policy as to the use of criminal background checks in the screening of job applicants, now is the time to do so.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.