A growing chorus of cities, counties, and states have passed “ban-the-box” laws that restrict when and how employers can consider an applicant’s or employee’s criminal history. Currently, thirteen states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico Oregon, Rhode Island, Vermont, Washington) and eighteen cities and counties (Austin, Baltimore, Buffalo, Chicago, Columbia (MO), District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, Spokane, and Westchester County (NY)) have ban-the-box legislation for private employers.
However, employers often forget that use of an individual’s criminal history in making employment decisions may also violate the federal prohibition against employment discrimination under Title VII of the Civil Rights Act. For instance, an employer’s neutral policy to exclude applicants from employment based on certain criminal conduct may disproportionately impact individuals of a certain race or national origin.
Recently, Dollar General Corp. agreed to pay $6 million to resolve a discrimination suit brought by the United States Equal Employment Opportunity Commission over the use of Dollar General’s broad criminal background check policy that purportedly discriminated against African-American applicants and employees. In addition to the monetary settlement, Dollar General must hire a criminology consultant to develop and implement a new criminal background check policy. The consent decree also requires Dollar General to update its reconsideration process and make it clear to rejected applicants that they may provide information to support reconsideration of their exclusion. The consent decree further