By: Shelbie J. Luna, Drewry Simmons Vornehm, LLP
Ban the Box laws have been enacted in many states and cities across the country. These laws generally prohibit employers from having a check box or question on job applications to indicate whether the candidate has ever been convicted of a crime. The general goal of ban the box legislation is to allow the candidate to at least have a job interview for the position, and then allow the employer to explore criminal convictions, including whether the conviction is job related and otherwise disqualifying for the position. Often, these candidates may not have even had an interview based on the fact that their application indicated a criminal conviction. Notwithstanding that from just a check box on an application an employer would not know the nature of the conviction or the circumstances, how much time had elapsed, whether the conviction had been expunged, or whether the conviction was of a nature that would disqualify him or her from the particular job applied for.
In Indiana, several local municipalities had enacted ban the box laws, including Indianapolis and Marion County. Recent state legislation taking effect July 1, 2017, prohibits local municipalities from adopting such ordinances. In enacting Senate Bill 312, Indiana became the first state in the nation to prohibit ban the box legislation. The stated goal behind the law was to allow employers to have operations state-wide without being subject to different hiring procedures from city to city or county to county. Indiana does not have a state-wide ban the box law.
Nonetheless, even without a state law, employers should still be leery of asking questions about convictions as part of a job application or making determinations regarding convictions, until later in the hiring process. The EEOC provides guidance regarding pre-employment inquiries of arrests and convictions. While federal law does not prohibit employers from asking about criminal history, such information used improperly may run afoul of Title VII. Title VII prohibits employers from discriminating against applicants or employees on the basis of race, national origin, color, sex and religion. If an employer treats people with similar criminal records differently because of a protected category, they have directly violated Title VII. On the other hand, if an employer has a policy that causes a disparate impact by automatically excluding all applicants with criminal convictions and it significantly disadvantages a group based on race or another protected category, and is not otherwise a means to determine job qualification, the employer has likewise violated Title VII. Thus, when making hiring decisions, it is a best practice to consider any criminal records after an initial interview and then determine if the conviction would otherwise call into question the applicant’s ability to perform the specific job applied for.