Overview

Retailers and other employers regularly consider the backgrounds of job applicants and employees when making personnel decisions. It is not illegal for employers to ask questions about an applicant’s criminal history, or to require a background check. However, whenever an employer requests background information about a job applicant or employee, the employer must comply with federal and state laws. Within the last five years, employers have been put under increased scrutiny, especially when they require criminal background checks during the hiring process. This article summarizes recent legal trends regarding criminal background checks in the employment context, and discusses how employers—particularly those within the retail industry—can ensure compliance with the law.

Criminal Background Checks in the Retail Industry

On May 15, 2017, the Fortune Society, an advocacy group supporting the successful reintegration of former inmates, filed an Equal Employment Opportunity Commission (EEOC or Commission) charge against Macy’s Inc. The charge alleges that Macy’s criminal background check policies violate Title VII of the Civil Rights Act of 1964 because they allow the retailer to reject otherwise qualified job applicants and employees based on their criminal histories. Fortune Society argues that this practice is discriminatory, as a worker’s criminal history bears no relationship to their ability to perform the particular jobs sought. The charge further asks the EEOC to investigate Fortune Society’s claims against Macy’s on a class-wide basis, and is intended to place the retailer on notice of class-wide discrimination allegations.

This recent EEOC charge against Macy’s highlights an increasingly visible paradox for retailers and other U.S. employers who consider employee criminal history in the hiring process. At one end, employers, particularly retail employers, want to avoid the pitfalls and dangers of negligent hiring. As a service industry featuring significant customer interaction and company asset management, not only must retailers be concerned with hiring those who can successfully represent that values of the company, but retailers also have a strong interest to only hire employees that can interact with customers and other employees without unduly risking safety or incurring legal liability. Nevertheless, despite these valid interests, there is a concern that considering employee criminal history in the hiring process can result in discrimination and significantly disadvantage those attempting to reintegrate after release from incarceration. There is also a concern that former inmates will be dissuaded from ever fully reintegrating into society, solely because they fear that their criminal history will impede their future employment.

The “Ban the Box” Movement

Although removing job barriers to ex-offenders can reduce recidivism, the figures show that employers are reluctant to hire applicants with criminal records that pose an undue risk to co-workers or customers. Employers might have several valid reasons to consider criminal history in their hiring decisions, such as the sensitive nature of certain positions (i.e., in the childcare business or national defense) or the valid interest in considering all available information to weigh a candidate’s qualifications. Nevertheless, despite these legitimate business interests, “Ban the Box” advocates point to the potential discriminatory effects of these hiring practices.

In reaction to the concerns of hiring barriers, the “Ban the Box” legislative movement was born to facilitate providing full employment opportunities to all job applicants, regardless of their criminal history. Specifically, the “Ban the Box” movement calls for a job application process which ensures that employers will judge applicants on their qualifications first, rather than screening applicants based on question on the application. These laws call for delaying any consideration of conviction history until later in the hiring process – usually after a conditional offer of employment has been made – giving applicants an opportunity to explain their criminal history.

“Ban the Box” laws started among public sector employees, and have grown increasingly widespread across the United States in recent years. Now over two-thirds of the U.S. population lives in a jurisdiction with some form of “Ban the Box” law. In a total of 27 states, including California (2013, 2010), New York (2015), Pennsylvania (2017) and Virginia (2015), statewide policies have been passed regulating the use of criminal history in state-employment job applications. Nine states, the District of Columbia, and 29 cities and counties now extend these policies to government contractors.

“Ban the Box” laws have also had an effect on the private employer. Nine states, including Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont, have mandated the removal of conviction history questions from job applications for private employers. In addition, 15 localities—Austin, Baltimore, Buffalo, Chicago, Columbia (MO), the District of Columbia, Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, and Seattle—have also extended their state’s “Ban the Box” laws to private employers. Thus, if your company has employees within any of these jurisdictions, it is important to reference your local and state laws, or consult your attorney to ensure the legality of hiring practices.

The typical “Ban the Box”, or fair chance law mandates removing questions about convictions from the application, and postpones inquiries of convictions until later in the hiring process. In some states, the laws specifically limit which types of conviction information is permissible in the hiring process, and what types of questions may be asked. Some states and jurisdictions, such as Washington D.C., will even apply financial penalties to employers who request certain forms of criminal background history. There are also special regulations on background checks in the context of particular employment fields, such as health and dependent care, education, law enforcement or public utilities.

It is important to understand the local and state laws applicable where you operate to understand what laws your company must follow.

“Ban the Box” As an Expansion of EEOC’s Guidance

“Ban the Box” laws represent an expansion of the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (the “EEOC Guidance”). Although the EEOC takes the general view that criminal background checks can have a disparate impact against African-Americans or Hispanics, the Commission does provide two avenues for employers to defend its usage: formal validation and individualized assessments. Because the formal validation process requires the use of a complicated methodology and is often very expensive, most employers do not view formal validation as a viable option.

Instead, most employers will conduct a targeted criminal background screen and engage in an individualized assessment of persons with criminal records. Under the EEOC Guidance, the Green factors provide the starting point to analyzing whether specific criminal conduct may be rightly linked to eligibility for particular positions, and whether there should be concerns about the risks of putting a job applicant in a particular position. Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977). The Green factors require employers to consider:

• The nature and gravity of the applicant’s original offense or conduct;

• The time that has passed since the offense, conduct and/or completion of the sentence; and

• The nature of the job now held or sought by the ex-offender.

The Green factors allow the employer to look at a potential employee’s conviction history with particularity and individualized scrutiny. They help guide the employer to consider whether a job applicant’s particular criminal past will reasonably affect their future job performance.

The EEOC Guidance further recommends that, after the targeted screen, employers conduct an individualized assessment. The individualized assessment process starts with the employer notifying the job applicant that he or she may be excluded because of past criminal conduct. Then, the job applicant is given the opportunity to demonstrate that the exclusion should not properly apply to him or her by providing individualized evidence. Under the EEOC Guidance, relevant individualized evidence which employers should consider include:

• The facts or circumstances surrounding the offense or conduct;

• The number of offenses for which the individual was convicted;

• Older age at the time of conviction, or release from prison;

• Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;

• The length and consistency of employment history before and after the offense or conduct;

• Rehabilitation efforts, e.g., education/training;

• Employment or character references and any other information regarding fitness for the particular position; and

• Whether the individual is bonded under a federal, state, or local bonding program.

In accord with the EEOC Guidance, after weighing these factors, the employer may decide whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity. If the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without any individualized information.

Recent Court and Congressional Visibility

The recently filed charge against Macy’s highlights the increased attention that this issue has garnered in both the courts and Congress.

Other private employers have recently faced similar suits, on claims of employment discrimination in the employer’s hiring practices. For example, in Equal Employment Opportunity Commission v. DolGenCorp LLC, the EEOC filed a complaint against Dollar General – DolGenCorp LLC – in the Northern District of Illinois, alleging disparate impact discrimination because Dollar General used a hiring process that considered criminal history. Under DolGenCorp’s allegedly illegal hiring practice, once an applicant gets a job offer, their hiring is contingent on their non “failure” on a criminal background check conducted by a third-party vendor. According to the EEOC complaint, DolGenCorp’s hiring process is discriminatory because the “utilization of [DolGenCorp’s] criminal convictions policy has not been demonstrated to be and is not job-related and consistent with business necessity.” Furthermore, the EEOC takes the view that the policy as applied did not provide for any individualized assessments of applicants who received a “fail” result, to determine “if the reason for the disqualification [was] job-related and consistent with business necessity.” The EEOC’s position is that Dollar General’s criminal background checks on conditional hires, a practice that has been employed in Dollar General’s over 13,000 stores nationwide, dated back to at least 2004 and unequally affected black applicants, causing a “gross disparity” in job opportunities. Ongoing since June 2013, to date, this case is still in litigation.

Congressional leaders have attempted to address this issue through proposed legislation. For example, on April 5, 2017, Rep. Elijah Cummings of Maryland introduced H.R. 1905, or the “Fair Chance Act,” to the U.S. House of Representatives, which proposes that Federal agencies and Federal contractors should be barred from requesting that a job applicant disclose criminal history record information before the applicant has received a conditional offer. It even proposes severe penalties for first and subsequent violators. The companion Senate bill S. 842 was introduced by Senator Cory Booker (D-NJ).

On March 21, 2017, Rep. Tim Walberg of Michigan introduced H.R. 1646 or the “Certainty in Enforcement Act of 2017,” which would amend the Civil Rights Act of 1964 to allow employers to consider or use credit or criminal records in the hiring process. Under the proposed legislation, so long as credit information or criminal record information is mandated by federal, state, or local law, it will be considered to be job related and consistent with “business necessity.” Further, the proposed law would mandate that the use of credit or criminal records under these circumstances could not be used as the basis of liability under any theory of disparate impact.

 What Should Retail Employers Do to Avoid Liability?

In the retail industry, where employees must regularly interact with customers and handle cash and credit cards, criminal background checks serve a valuable function. However, with the rise of “Ban the Box” legislation across the United States, employers who regularly conduct criminal background checks must be increasingly aware of the particular laws within their jurisdiction. Nevertheless, there are several specifics steps that employers can and should consider.

First and foremost, employers should consult and continually monitor the relevant state and local laws concerning criminal background checks in the jurisdictions where the employer has employees, as these laws may be subject to change.

Second, employers must be in a position to demonstrate that their hiring policies are in compliance with federal, state and local laws. This can be done by using targeted screens in the hiring process and avoiding a one-size-fits-all approach that subject all job applicants (regardless of the position) to the same criminal background checks. Employers should also ensure that every targeted screen is followed by an individualized assessment that considers the totality of the circumstances of the conviction, and the specific position sought.

Employers should avoid policies that demonstrate an applicant’s automatic exclusions for any criminal conviction history. Employers should also train the human resources department and all decision makers to avoid reliance on hard and fast exclusions. Employers should routinely conduct self-audits to root out inconsistencies in their policies and hiring practices.

Third, the employer must ensure that its practices are in line with the 2012 EEOC Guidance. This means that employers should:

• Avoid asking about arrest records on the application;

• Avoid considering convictions that were sealed, eradicated, erased, annulled by a court, expunged, or resulted in a referral to a diversion program; and

• Include a disclaimer on applications (such as: “answering ‘YES’ to these questions does not constitute an automatic bar to employment,” or “the company will consider various factors, including but not limited to, the nature and gravity of the offense and the position for which you are applying”).

If the EEOC brings suit against your company for an allegedly discriminatory background check, do not give up hope. As was shown in the Sixth Circuit Court of Appeals in EEOC v. Peoplemark, Inc., the EEOC often makes mistakes. For example, in Peoplemark, the Sixth Circuit affirmed the federal district court of Western Michigan that awarded the employer its attorney’s fees and expert fees (totaling $751,942.48). See Equal Employment Opportunity Commission v. Peoplemark, Inc, 732 F.3d 584 (6^th Cir. 2014).

If your company is in litigation against the EEOC, it is strategically valuable to narrow the scope of the EEOC’s claims early in the case. This means attempting to get the EEOC to identify which specific part of the background check practice causes any alleged disparate impact, and then attacking this narrowed issue in pretrial motions. It is also prudent to challenge the EEOC’s evidence and data supporting its claims for disparate impact by attacking any “expert” reports. As always, specific litigation strategies are dependent on the particular circumstances of a case, and should be individualized to fit your company’s legal situation.

Conclusion

In “Ban the Box” jurisdictions, the safest policy for employers who wish to obtain criminal background checks during the hiring process is to not ask about criminal history until after the conditional offer of employment is made. Some employers with multistate operations even tailor their policies to this lowest common denominator. To minimize the risk of litigation, it is important for every employer to consult federal, state and local laws when making these hiring decisions, and to contact your attorney for further guidance.

*Daniel Masakayan is a summer associate at Sheppard Mullin.