Private Employers May Be Impacted by the “Ban the Box” Approach in 2014

Employers face a unique challenge when hiring new employees among a pool of applicants.  On the one hand, the employer must demonstrate due diligence by hiring an applicant that is not dangerous, unfit, unqualified or dishonest so as to avoid liability for negligent hiring.  Many employers conduct criminal background checks to screen out unfit candidates.  On the other hand, employers must be cognizant of the applicant’s rights and legal protections, especially when conducting criminal background checks. “Ban the Box” is a movement that eliminates questions about past criminal conduct on initial job applications.  The “box” refers to where an applicant is asked to answer “yes” or “no” about a criminal past on a job application.  This movement is becoming a national standard and will be a hot topic for employers in 2014.  The rationale for this movement is to avoid a potential early elimination for ex-offenders that may otherwise be qualified for a position.  This allows an applicant to compete on a level playing field based upon their qualifications.  This movement does not mean that employers may not consider criminal histories at all during the hiring process.  During or after an interview, employers are still free to conduct background checks.

Several states and counties have adopted a “ban the box” approach for public employers, including Illinois in 2013.  Some states have extended the “ban the box” approach to private employers.  For instance, Hawaii, Massachusetts, Minnesota, and Rhode Island all have laws extending the rule to private employers.  Minnesota’s “ban the box” provision limits private sector employers within the state from asking about criminal records of job applicants until an interview or a conditional job offer.

In addition to state adoption of ban the box laws, many major U.S. cities have also adopted hiring policies to remove unfair barriers to applicants with criminal records.  These major cities include:  Baltimore, MD; Boston, MA; Chicago, IL; Cincinnati, OH; Cleveland, OH; Detroit, MI; New York City, NY; Oakland, CA; Philadelphia, PA; Pittsburgh, PA; San Francisco, CA; Seattle, WA; and Washington, DC.

So how does this affect private employers?  First, this movement could eventually expand to include private employment as it did in Hawaii, Massachusetts, Minnesota and Rhode Island.  Thus, private employers may want to begin thinking about a “ban the box” approach.  Second, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued guidance on the use of criminal records in hiring decisions which has the potential to affect every U.S. employer.  While the guidance is not a law or a legally enforceable regulation, it demonstrates how the EEOC interprets the use of criminal records.  The EEOC investigates and initiates lawsuits in situations where an employer makes a hiring decision based on criminal records and does not consider whether the record is job-related or constitutes a business necessity.  This practice can create a discriminatory disparate impact on groups protected under Title VII of the Civil Rights Act.  Therefore, to avoid potential liability, employers may want to eliminate the use of criminal background checks as an initial requirement in the hiring process.

Private employers considering the “ban the box” approach should use hiring techniques based upon neutral factors.  Once an employer inquires into an applicant’s criminal background, the employer should avoid broad questions that may encompass criminal records that are too old or irrelevant for the position in question.

For more information on this topic, contact Stephanie Strickler at 312-334-3465 or sstrickler@messerstrickler.com.