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Affirmative action for criminals
Employers need to prepare for the next crusade from activist lawmakers: affirmative action
for criminals.
As I have mentioned before in this column,
the EEOC has issued a type of regulation
called a “guidance” — which is still being
challenged — requiring employers to delve
deeper into the details of a minority’s criminal
record before rejecting an applicant for
employment.
In a companion development, some
jurisdictions are adopting “Ban the Box” laws,
which prohibit questions about an applicant’s
criminal record until after a conditional offer of employment has been made.
The “box” these laws are referring to is the check box next to the question: “Have you ever
been convicted of a crime?”
As you probably know, it has been illegal for many years to ask applicants if they have ever
been arrested because an “arrest” disqualification could have a disparate impact on minorities.
Because an arrest is not proof of guilt, such a restriction makes more sense than a restriction
against asking about criminal convictions.
The city of Baltimore, where my office was for many years, recently passed an ordinance,
which will likely go into effect this year, forcing employers to postpone criminal background
checks.
Under the ordinance, an employer is prohibited from asking about a job applicant’s criminal
record or performing a criminal background check until after it makes a conditional job offer.
The bill also prohibits discrimination or retaliation (e.g. refusing to hire an applicant because the
applicant tells the employer that its question about his or her criminal record is illegal).
Once it has made a conditional offer to the applicant, the employer under the bill may explore
the criminal record issue, including requiring the applicant to pass a criminal background check
prior to being hired.
If it learns of information during this time that raises concerns about the applicant’s fitness for
the job, the employer has to notify the applicant and give him or her a chance to respond. The
employer is not required, however, to hire an applicant with a criminal record. In other words,
this law pushes back the timing of when employers may consider an applicant’s criminal record;
it does not forbid them from considering it at all.  
These “ban the box” bills, however, frequently run afoul of government requirements that
criminal background checks be done for certain workers. In the Baltimore city bill, there are
notable exceptions to the bill’s requirements.
First, employers that provide services or direct care for children and/or “vulnerable adults”
(which the bill defines as “adult[s] who lack[s] the physical or mental capacity to provide for
[their] own daily needs”) are not affected. For example, child care centers may still ask whether
an applicant has been convicted of sexual abuse.
Second, inquiries that are already required by federal, state or city law or regulation remain
intact. This second exception includes the following:
• Federal law enforcement officers.
• Airport security screeners.
• Child care workers in state or federal agencies or facilities.
• Bank employees.
• Port workers.
• Positions requiring occupational licenses (e.g., taxicab and truck drivers).
• Positions requiring federal security clearances.
• Security systems technicians.
• Nursing referral service agencies.
• Congregate housing services for seniors.
Additionally, if the applicant voluntarily brings up his or her criminal record without being
asked, the employer may use this information.
If you are located in a city or state with a government that shares Baltimore’s activist
philosophy, you might see a similar law in your future. You should probably prepare now for
such a possibility.
Under the EEOC Guidance, employers are supposed to make an individualized assessment of
each applicant’s criminal record by considering factors such as the nature of the crime for which
the applicant was convicted; the time that has passed since the conviction; and the nature of
the job the applicant is seeking.
For example, according to the EEOC, an applicant for a public relations account executive
position who has a 20-year-old misdemeanor assault conviction should not be kept from
employment based on the conviction.
You might consider reviewing your hiring processes to ensure that the criminal record issue is
properly handled. If your jurisdiction “bans the box,” you may have to rework your employment
application and how you handle criminal convictions.
If you use an electronic (online) application system, you should remove any questions asking
whether the applicant has been convicted of any criminal offense, regardless of the time period.
In addition, you should not ask an applicant’s references about the applicant’s criminal history
prior to making a conditional offer, unless the position you are seeking to fill falls within one (or
more) of the exceptions in the law of your jurisdiction.
As part of your offer package, you may have to use conditional language that gives you
leeway to withdraw the offer, depending on the results of the criminal background check. For
example:
“This letter shall confirm our conditional offer of employment to you as a (job title). Please
understand that your offer of employment is contingent upon the satisfactory outcome of a
criminal background check.”
If your jurisdiction does not “ban the box,” but you are concerned about the EEOC, you may
just want to ask the follow-up questions suggested by the EEOC when an applicant discloses a
criminal conviction.
Other issues may arise, however, if you decide to hire a person with a criminal conviction
because of a satisfactory explanation, then you are confronted with an explanation that is
similar, but not nearly as satisfactory. The lack of consistency in how you treat criminal
convictions could form the basis for future charges of other illegal discrimination.
No matter what decision you make, you should expect future laws, regulations, guidances,
and judicial decisions concerning how criminal convictions should be handled during the hiring
process (and possibly even for current employees who get convicted).
Use good judgment, but remember that good judgment will not always keep you out of
trouble with governments that are more concerned about helping criminals than employers.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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