What Employers Need to Know About “Ban the Box”
By: Trenam’s Employment Law Team
“Ban the Box” or “Fair-Chance Hiring” describes a recent movement that advocates removing the check box appearing on many job applications asking applicants whether they have criminal histories. Ban-the-box advocates say that inquiring into criminal histories reduces job prospects for ex-offenders and that banning the box will give ex-offenders a fair chance at employment and reduce recidivism. Employers are concerned that prohibiting inquiries into criminal histories will increase risks to other employees and members of public with whom an applicant might interact as well as the employer’s potential liability for the applicant’s wrongful conduct.
Given the existing legal landscape, it is difficult for employers to know what to do. On one hand, the Equal Employment Opportunity Commission (“EEOC”), which is the federal agency responsible for investigating and enforcing Title VII (a federal law that prohibits discrimination based on race, color, national origin, sex or religion), has sued a number of employers that use criminal background checks to exclude job applicants for discrimination, alleging that such exclusions have a disparate impact on African-American and Hispanic men. Additionally, a number of states and localities have passed their own ban-the-box laws. On the other hand, other laws require criminal history checks or encourage them by offering protection to employers from negligent hiring lawsuits. For example, Florida Statute § 768.096 provides a presumption against negligent hiring to employers that investigate job applicants by, among other things, conducting criminal history checks.
- Federal Law
The EEOC states that an employer that conducts a criminal background check mandated by federal law or regulation cannot be liable under Title VII, but an employer that conducts a state-mandated or authorized background check has no such protection.
If you are conducting criminal background checks other than those mandated by federal law and excluding applicants based on the results, then you should ensure that your reasons for excluding the applicants are job-related and consistent with business necessity. Before excluding ex-offenders from jobs, the EEOC recommends that employers consider at least (1) the nature of the criminal offense; (2) how long ago the offense took place; and (3) the nature of the job. The EEOC also recommends that employers conduct individualized assessments of applicants before deciding to exclude them so they have a chance to explain their circumstances.
- State and Local Law
Although some cities and counties in Florida have passed ordinances banning the box for government hiring, there are no ban-the-box laws in Florida applicable to private employers. However, there are efforts underway to expand such laws to include private employers.
If you consider criminal history in making employment decisions, you should seek the advice of counsel to minimize the risk of a discrimination claim by an individual or the EEOC. A member of the Employment Law Group at Trenam Law would be happy to advise you on these issues.