[co-author: Paul Obszanski]
Companies are rethinking the single check box on employment applications that inquire about an applicant’s criminal history. Over sixty cities and counties have taken steps toward eliminating job application barriers that have traditionally disposed of candidates with a criminal history. These steps are part of a movement referred to as “Ban-the-Box,” which removes the question of criminal history on job applications, and defers any criminal history inquiry until later in the hiring process.
Since U.S. incarceration rates have more than tripled from the mid-1980s to 2010, an increasingly staggering number of individuals find themselves unable obtain a job. The movement seeks to restore employment opportunities, and it attempts to give second chances. Although employers are not forced to hire convicted felons, the ban the box concept will allow applicants ample opportunity to obtain a job based on his or her skills. The ban the box movement affords a convicted felon the opportunity to apply for jobs and have a chance to discuss or explain his or her criminal history in a way that provides context to an applicant’s conviction history.
The ban the box ordinance took effect in Indianapolis on June 5, 2014. The ordinance makes it unlawful for city and county agencies and their contractors with ten or more full-time employees to inquire about criminal history on employment applications. The ordinance prohibits covered employers from inquiring into or requiring criminal history until after a first interview. However, an applicant’s voluntary disclosure of criminal history allows an employer to discuss those convictions. The ordinance is designed to postpone disclosure of felony convictions in order to afford felons the opportunity to provide facts and circumstances that might otherwise blackball someone based solely on their criminal background.
Although the movement is gaining momentum in various cities across the country, the Equal Employment Opportunity Commission has already taken notice. On April 25, 2012, the EEOC updated enforcement guidance on employer use of arrest and conviction records. The guidance consolidates and supersedes the Commission’s 1987 and 1990 policy statements on employment decisions under Title VII of the Civil Rights Act of 1964. Since issuing updated guidance, the EEOC has filed complaints against employers including Dollar General in Illinois and BMW in South Carolina.
In the Dollar General complaint, the EEOC focused on a screening matrix that Dollar General used to identify and rank specific felonies and misdemeanors. Dollar General’s matrix created a threshold to rescind an employment offer based upon, in part, how recently an applicant’s convictions occurred. Similarly, the EEOC attacked BMW’s efforts to single out employees based on their criminal history. Of 645 sub-contractor employees who were re-screened when they were reassigned to work in a different plant based on a change in contractors, BMW denied access to eighty-eight employees, which is around 14% of all employees screened. Of those eighty-eight, seventy were African American. The EEOC alleged that BMW’s policy has a discriminatory impact on African American applicants. Although the BMW and Dollar General cases were eventually dismissed, the suits highlight the attention systematic screening practices have already received.
As the law evolves at different rates across the country, employers need to be aware of the applicable laws in jurisdictions where they conduct business activities because laws may vary significantly by jurisdiction. Employers should consider whether the question of criminal history can be deferred in the hiring process. The BMW and Dollar General cases have demonstrated the EEOC’s aversion to systematic efforts to filter out applicants with a history of criminal convictions. Instead, employers should consider each applicant’s individual circumstances.
Traditionally, employers were advised to follow the Green factors in making hiring decisions. In Green v. Missouri Pacific Railroad Co., the court mandated individualized consideration based on: (1) the nature of the crime, (2) the time that has elapsed since the crime, and (3) the nature of the job in question. Now, the EEOC requires employers to use the Green factors and individual inquiries after the first interview that allow an applicant to provide context to his or her prior convictions. Incorporating EEOC guidance with the ban the box laws as they develop pushes employers to initially evaluate candidates based upon their skills and qualifications without consideration of criminal background. Decisions not to hire can be based upon a connection between the crime and the nature of the job in question. However, in order to avoid discriminatory claims, employers should take an individualized approach to evaluating and eliminating candidates. Systematically eliminating candidates from consideration based on criminal history is no longer an acceptable practice. Employers with ten or more employees should contact an employment lawyer to review company hiring practices, applications, and employee handbooks to remain compliant with the ban the box ordinance.
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 Dolgencorp LLC d/b/a Dollar General Complaint, ¶ 13.
 BMW Manufacturing Co. LLC. Complaint, ¶ 19.
 Id. at ¶17.
 Id. at ¶18.
 Id. at ¶24.
 Id. at ¶28.
 Green v. Missouri P. R. Co., 523 f.2d 1290, 1297 (8th Cir. 1975).