LEGISLATIVE UPDATE- Reactions to EEOC’s ‘Ban the Box’ Suggestion Differ

Federal Legislative Update

 Reactions to EEOC’s ‘Ban the Box’ Suggestion Differ 

An Equal Employment Opportunity Commission (EEOC) recommendation in its recent guidance on criminal background checks to not ask about convictions in employment applications as a best practice is being taken by some as bad advice.

In other jurisdictions, it is sound business practice to seek information at the outset of the application process that is important in screening applicants. This includes information about criminal convictions that are manifestly job related, such as a history of theft for someone seeking a bank teller position or a history of sexual crimes for a job in a high school.

Alternatives

One alternative to not asking about convictions on all applications is to have different applications and different questions relating to criminal history for different positions or job classes. The EEOC’s guidance seems to indicate that what criminal history question employers should ask should be tailored to the specific job in question.

No Rush to Remove Box
 

Assuming they are not in a jurisdiction that prohibits questions on applications about convictions, employers need not rush to remove a box inquiring about prior criminal convictions on their application forms.

Employers should review their application question and determine whether it is appropriately tailored for their business and the positions for which it is being used and to ensure it is compliant with current state and local law. For example, an employer can consider whether it is appropriate to limit the question to particular types of crimes or crimes that occurred within a specific period of time.

A question about conviction history on an application form does not preclude individualized assessment. Indeed, an employer may expressly state on its application that a conviction is not an automatic bar to employment precisely because it intends to engage in an individualized assessment after the applicant reports that he or she has previously been convicted of a crime.

Relevancy of Criminal History

“The $1 million question”, is how employers can determine if criminal history is relevant and what kinds of questions would or would not have a nexus to job duties.  The EEOC does not provide any real guidance for employers. There may be some jobs in which it is obvious, such as the conviction of theft within a period of years, and hiring a housekeeper.

The key is for the employer to be thoughtful in its approach and consider documentation justifying the rationale for specific exclusions.