Monday, July 21, 2014
Illinois is the latest State to enact “ban the box” legislation, i.e., legislation that restricts when an employer can ask a job applicant about his or her criminal history. (The “box” is the one on a job application to answer the question “Have you ever been convicted of a crime?”) Twelve States now have such legislation on the books, as will over sixty counties and cities.
The Illinois legislation—which takes effect next year—provides that, absent certain exceptions, an employer “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position” and the employer either has told the applicant that it has selected her for an interview or has made her a conditional offer of employment. The Illinois Department of Labor is the enforcer here—there’s no provision in the bill for a private right of action.
Meanwhile, the District of Columbia’s city council has also passed a “ban the box” bill and sent it to the mayor for his signature. That bill prohibits employers from asking about, or asking a job applicant to reveal, "any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and or which did not result in a conviction." Employers can ask about criminal convictions but only after making a conditional offer of employment. Like the Illinois legislation, the D.C. bill makes the D.C. Office of Human Rights the exclusive enforcer here—there’s no private right action.
Among its other features, the D.C. bill provides that if the employer extends a conditional offer, checks the applicant’s criminal history, and then rescinds that offer, and if the applicant believes that the employer did that “on the basis of a criminal conviction,” the applicant can, upon request, get from the employer, within thirty days, “a copy of “any and all records procured by the employer in consideration of the applicant or employee, including criminal records.” In June, the bill had also required that employer to give the applicant a written “statement of denial” that identified the employer’s “legitimate business reason” for its action. Failing to provide that statement would have triggered a rebuttable presumption that the employer had no “legitimate business reason” for its action. The D.C. Chamber of Commerce opposed this provision, and in mid-July, the bill was amended to remove it.
Since 2012, the EEOC has opined that, under some circumstances, employer use of a job applicant’s criminal history may violate Title VII of the Civil Rights Act. For an entry point into the research on how much a job applicant’s criminal history matters, see, for example, Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” Annals of the American Academy of Political and Social Sciences 623 (May 2009): 195-213.
The next puzzle on the horizon: Figuring out how and how much these “ban the box” statutes actually affect employer hiring.
Hat tip: R. Michael Fischl