Heyl Royster

Legislative Updates - Ban the Box Laws Gathering Momentum

november 19, 2014

By passing the Job Opportunities for Qualified Applicants Act, Illinois has become the fifth state to pass a "ban the box" law, which prohibits employers from screening job applicants by inquiring into their criminal backgrounds. See Job Opportunities for Qualified Applicants Act, 820 ILCS 75/1, et seq. The four other states who have passed such a law are Massachusetts, Minnesota, Rhode Island, and Hawaii. Additionally, several cities, including: Philadelphia, Seattle, San Francisco, Buffalo, Baltimore, and Newark, have passed similar local ordinances.

The recent momentum of "ban the box" laws coincides with the Equal Employment Opportunity Commission's (EEOC's) nationwide directive against employer background checks. Pursuant to its Strategic Enforcement Plan for 2013-2016, the EEOC has taken the position that criminal background checks encourage systematic discrimination in the application process.

Currently, there are no federal regulations prohibiting employers from inquiring into applicants' criminal backgrounds. Therefore, in the absence of state laws or local ordinances prohibiting such inquiries, the EEOC argues that criminal background checks have a disparate impact against applicants who are male, African American, or Hispanic and are, therefore, discriminatory. See EEOC v. Freeman, 961 F. Supp. 2d 783, 789 (D. Md. 2013).

So far, the EEOC has not had any success in federal litigation regarding its position against criminal background checks. In EEOC v. Freeman, the EEOC argued that an employer's policy of disqualifying applicants convicted of violent crimes, felony drug crimes, sexual assault or harassment, destruction of private property, and job-related misdemeanors was discriminatory. Freeman, 961 F. Supp. 2d at 789. The EEOC relied on two experts to gather and analyze statistics in order to prove the "disparate impact" discrimination that the EEOC claims results from criminal background checks. Id. The district court excluded the two experts because their statistical inferences had no scholarly basis with regard to workplace discrimination, and the court also stated that criminal background checks are reasonable steps in the application process. Id. at 793–98. Furthermore, the district court held that national statistics alone are not enough to prove the EEOC's disparate impact claim. Id. at 798–99.

Because prohibitions on criminal background or credit history background checks do not exist in federal law, the EEOC hypocritically conducts such background checks on its applicants for the majority of its offered positions. See EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749 (6th Cir. 2014). In Illinois, the Illinois Fair Credit Reporting Act and the Job Opportunities for Qualified Employees Act now restricts employers in conducting background checks into an applicant's credit or criminal history. See Public Act 98-0774; Employee Credit Privacy Act, 820 ILCS 70/1, et seq. The fact remains, however, that Illinois employers have been constrained by state law to identify specific positions and corresponding criminal convictions that could permissibly disqualify applicants. In order to avoid the potential litigation resulting from dismissing a conditional employee or not hiring an interviewee after conducting a criminal background check, employers should seek guidance in establishing an effective and legally permissible hiring policy.

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