Should Michigan Employers “Ban the Box” and Remove the Criminal Conviction Question from Applications?

Elizabeth Rae-O’Donnell

On November 2, 2015, President Barack Obama announced a new executive order to “Ban the Box,” which is a check off on federal job applications that requires job applicants to disclose their criminal conviction history on the face of the application. This initial disclosure often causes employers to eliminate applicants before ever considering their qualifications. Background investigations will still occur, but at the federal level, agencies will delay inquiries into criminal histories until later in the hiring process, perhaps after a conditional offer of employment has been made.

The National Employment Law Project (NELP) reports that 19 states have adopted “ban the box” policies. Seven of those same states have also removed the conviction history question on job applications for private employers.  In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) endorsed removing the conviction question from job applications as a best practice indicating that federal civil rights laws regulate employment decisions based on arrests and convictions and that an automatic exclusion of an applicant based upon a prior criminal conviction may introduce discriminatory bias for workplace hiring decisions.  Additionally, more than 100 Michigan counties and cities, including Genesee County, Saginaw County, Muskegon County, Detroit, Kalamazoo, Ann Arbor, and East Lansing have adopted “ban the box” policies. Private companies such as Target and Home Depot have also instituted ban the box policies for their organizations.

All of the 2016 Democratic presidential candidates have endorsed banning the box on applications and Republican presidential candidate Chris Christie signed a “ban the box” bill into law in 2014.  In 2013, Michigan Representative Fred Durhal, Jr. (D-Detroit) proposed legislation (HB4366) to remove the criminal conviction request on employment applications, but this bill was not enacted into legislation.

Given what appears to be a growing national movement, the question remains as to what are the best employment practices for Michigan employers?  Michigan employers must understand that both the Michigan Elliott-Larsen Civil Rights Act and Title VII of the Civil Rights Act of 1964 govern their employment practices. Although potential applicants with criminal convictions do not fit within a protected category, they could still claim unlawful discrimination based upon a negative disparate impact. Disparate impact is a theory of liability regarding a facially neutral employment practice (reporting criminal convictions upfront) that does not appear to be discriminatory on its face, but is discriminatory in its application or effect.  Advocates for the removal of the conviction check on the face of the application argue that minority candidates are disproportionately excluded from consideration for employment. The 2012 EEOC Enforcement Guidance recommends that employers, after learning of criminal convictions, should assess whether an exclusion from employment consideration is consistent with business necessity by looking at the following factors:  (1) nature and gravity of the offense or conviction; (2) how much time has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.  The EEOC also suggests that if an application has been initially screened out because of a criminal conviction, an “individualized assessment” should be performed that would include re-notice to the applicant, an opportunity for the individual to demonstrate that the exclusion should not be applied due to his/her particular circumstances, and consideration by the employer as to whether additional information provided by the applicant warrants an exception to the exclusion. The EEOC also recommends that employers develop narrowly tailored written policies and procedures for examining applicants and employees for criminal conduct which could include identifying essential job requirements, determining specific instances that may demonstrate unfitness for performing certain jobs, and recording justifications for the policy and procedures utilized.

While states and local jurisdictions may have laws and/or regulations restricting or prohibiting the employment of individuals with records of certain conduct, for example daycare providers, school teachers, nonteaching school employees, and caregivers in residential facilities, if the exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation may not shield an employer from Title VII liability.  CMDA will continue to monitor this issue to see if there is any forthcoming legislation that will impact Michigan employers.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.