Authored by: S. Kyle Weaver[i]
In early 2016, Alabama became the most recent state to consider “banning the box” on employment applications.[ii] Supporters of the “Ban the Box” movement seek to remove questions from employment applications which request information on applicants’ criminal histories.[iii] The nationwide movement began in the early 2000’s as grassroots supporters urged municipalities to remove questions about convictions from their job applications.[iv] Over one hundred municipalities have banned the box since the movement’s inception over a decade ago.[v] Alabama would be the twentieth state to enact some version of “Ban the Box” legislation.[vi]
Supporters of “Ban the Box” urge that application questions inquiring into an applicant’s criminal history violate Title VII of the Civil Rights Act of 1964.[vii] Title VII prohibits employment practices which intentionally, and unintentionally discriminate against members of a protected class.[viii] Intentional discrimination, commonly referred to as “disparate or adverse treatment,” exists where an employee is treated differently because of the employee’s status as a member of a protected class.[ix] On the other hand, unintentional, or “disparate impact” claims arise from the use of neutral tests or selection procedures which disproportionately exclude members of a protected class.[x] “Ban the Box” advocates argue that the use of criminal convictions by employers has a disparate impact on minorities because rates of incarceration are high among Hispanic and African American men.[xi]
It is estimated that nearly ninety percent of American employers utilize criminal background checks prior to hiring an applicant.[xii] Employers utilize background checks to select the best employees for their businesses. Moreover, employers who fail to exercise reasonable care in selecting employees may be held liable in tort under theories of respondeat superior and negligent hiring. However, regulators’ approval of these measures appears to be dwindling as evinced by guidance released in April 2012 by the Equal Employment Opportunity Commission (“EEOC”).[xiii] The EEOC recommended “that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”[xiv] Heeding the EEOC’s guidance, in November 2015, President Obama signed an Executive Order which banned the box from federal government job applications.[xv]
Before the President’s Executive Order, approximately fourteen states (and many more cities) had already taken action of their own, including Georgia.[xvi] Private Alabama employers are not subject to any state “ban the box” law that mandates deferred or delayed inquiries into an applicant’s criminal past, but these laws are being implemented at a surprisingly fast rate. Of the fourteen states with “Ban the Box” laws prior to the November Executive Order, six enacted laws that applied not only to public employers, but the private sector as well.[xvii]
Additionally, current “Ban the Box” laws only prevent an employer from inquiring about criminal convictions on employment applications.[xviii] Employers remain free to conduct a criminal background check which complies with the federal Fair Credit Reporting Act after an initial interview, or before a final job offer is made.[xix] Conversely, the National Employment Law Project (“NELP”), urges a shift to a “fair chance hiring policy” which “includes removing the check-box, plus a robust set of fair hiring policies to ease employment barriers.”[xx] In support, NELP argues that “[t]he most effective policies don’t just delay a background check; they ensure that when background checks are required, they’re used fairly.”[xxi] The Alabama legislature has already enacted certain forgiveness measures for individuals with records of lesser criminal charges, such as the so-called “Expungement Law” that went into effect July 7, 2014.[xxii] In Alabama, the “Ban the Box” proposition was discussed by the Prison Task Force as a means of lowering recidivism.[xxiii] Though not statewide, “Ban the Box” has already made its way into Alabama. On February 4, just days after the announcement by the Prison Task Force, Birmingham Mayor William Bell announced that questions pertaining to criminal history would be removed from the City’s job applications.[xxiv] The implementation of “Ban the Box” in Alabama’s largest city may be a wink and a nod as to what’s to come statewide. Whether the proposal will reach the legislature at large, and the extent of any such measure, remains to be seen.
[i] Juris Doctorate, expected May 2017, Cumberland School of Law, Samford University, B.S., Finance and Human Resource Management, Florida State University.
[ii] Mike Cason, Alabama prison task force to discuss ‘ban the box’ proposal, AL.Com (Jan 25, 2016, 5:51 PM), http://www.al.com/news/index.ssf/2016/01/alabama_prison_task_force_to_d.html.
[iii] Michelle Natividad Rodriguez, The Fair Chance/Ban the Box Toolkit, NELP (Apr. 2, 2015), http://nelp.org/publication/the-fair-chance-ban-the-box-toolkit/.
[vi] Cason, supra note 2.
[vii] Christopher Doty, “Because of Such Individual’s Race”: Employers’ Use of Criminal Records as Unlawful Employment Discrimination, 44 Cumb. L. Rev. 79, 81 (2014), https://cumberlandlawreview.files.wordpress.com/2015/09/doty-comment.pdf.
[viii] EEOC, Employment Tests and Selection Procedures, http://www.eeoc.gov/policy/docs/factemployment_procedures.html.
[xi] Doty, supra note 6, at 80–81.
[xiii] Equal Emp’t Opportunity Comm’n, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012), http://www.eeoc.gov/laws/guidance/arrest_ conviction.cfm.
[xv] Stephanie Condon, Obama to “ban the box” on federal job applications (Nov. 2, 2015, 5:59 PM), http://www.cbsnews.com/news/obama-to-ban-the-box-on-federal-job-applications.
[xvi] See Reid Wilson, Georgia the latest state to ‘ban the box’ in hiring practices, The Washington Post, (February 24, 2015).
[xix] Rodriguez, supra note 3, at 49.
[xx] Id. at 4.
[xxii] The “Expungement Law” amends Ala. Code § 15-27-1 to-9 to permit the expungement of the criminal records of persons charged—but not convicted—of misdemeanors and nonviolent felonies. Those with criminal records “shall not have to disclose the fact of the record” on job applications, but they have a duty to disclose the records to government regulatory or licensing agencies, utilities, and financial institutions. The statute provides immunity from civil liability to employers that hire these individuals and are unaware of a criminal record due to its expungement.
[xxiii] Cason, supra note 2.
[xxiv] Alan Collins, Birmingham ‘bans the box’ for city job applicants (Feb. 4, 2016, 7:03PM CT), http://www.wbrc.com/story/31144306/birmingham-bans-the-box-for-city-job-applicants.