April 20, 2018
Ahead of what appears to pose many challenges for employers, civil actions relating to Ban the Box are already on the move.
Recently, Target, one of the nation’s largest retailers, reached a $3.74 million settlement in a threatened class action suit. The complaint alleged that Target’s hiring policies, specifically their criminal record screening policies, excluded applicants who had outdated or unrelated arrests or convictions from obtaining gainful employment with the company because they asked about the applicant’s criminal history – even when the crimes were unrelated to the job sought.
In 2012, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. In part, this guidance recommended best practices for employers when making employment decisions. The EEOC recommended conducting “individualized assessments” of each candidate, or in lawyer-speak, a “totality of the circumstances” review (a legal term of art for considering the whole picture). Employing this approach applies a more fair chance process to those who may not be able to find significant or suitable work because of a prior criminal history record. Additionally, the EEOC’s guidance works towards eliminating unlawful discrimination in employment screening while also reducing the risk of companies, like Target, to face potential civil action based in part on discrimination.
After facing threatened litigation, Target has taken the position to Ban the Box on its job applications nationwide, jumping ahead of the curve where Ban the Box has yet to go into effect in some jurisdictions. The Ban the Box movement began in 2004 by a national civil rights group of formerly-incarcerated people and families called All of Us or None. The movement challenged the stigma and stereotypes of people with conviction histories by asking employers to choose the best candidate based on job skills and qualifications and NOT their past convictions. Research suggests that eliminating the box, which typically asks applicants if they have a criminal record, has many positive effects for those seeking employment, for our cities, for our communities, and for our overall growth as a nation.
Ban the Box has gone into effect in 30 states and many cities and municipalities across the nation. Amidst its novelty has come some foreshadowing from Target’s recent suit that can be discerned quite easily — Ban the Box litigation is already on the move and poses many implications for those employers not following the recommended guidance by the EEOC.
Referenced Sources: Criminal Record Screening Policies Continue to Raise Important Compliance Issues https://www.littler.com/publication-press/publication/criminal-record-screening-policies-continue-raise-important-compliance Target Settles Suit Over Asking Job Applicants About Criminal Records http://money.cnn.com/2018/04/05/news/companies/target-settlement-hiring-discrimination/index.html EEOC Enforcement Guidance https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#I National Employment Law Project http://www.nelp.org/