In prior posts, we have noted that HR professionals should acknowledge the tension between making hiring decisions based on an applicant’s criminal history and avoiding Title VII liability, if refusing to hire certain individuals based on these prohibitions results in disparate treatment of or disparate impact on protected classes of individuals under Title VII (e.g., race, national origin, gender). In recent years, the “Ban the Box” Movement has gained traction in an effort to place restrictions on the types of criminal conduct that employers may consider and how they may consider it, with the stated goal of affording persons with histories of criminal conduct opportunities for gainful employment. At the federal level, the EEOC complemented these efforts when it issued its 2012 Enforcement Guidance entitled, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” In this Guidance, the EEOC emphasized that criminal background check practices may have a disparate impact on, for example, African American and Hispanic men who have a statistically higher arrest and incarceration rate than other classes of individuals. Accordingly, the EEOC’s Guidance outlined what it believes to be an employer’s best practices for complying with Title VII when handling an applicant’s criminal history. In 2015, the Obama Administration adopted a “ban the box” policy in federal employment by modifying certain rules to delay inquiries into an applicant’s criminal history until later in the hiring process.
At the state level, according to the National Employment Law Project, 25 states have adopted policies that prohibit inquiring into or considering an applicant’s criminal history until after consideration of the applicant’s qualification, largely in the public employment sector. In nine of those states, private employers also are prohibited from requesting criminal history information until later in the hiring process. South Carolina currently is not one of those states. However, if any one of the four bills (H. 3059, H. 3062, S. 191, S. 192) currently pending before the South Carolina General Assembly is passed, “ban the box” could be a statutory, statewide policy in South Carolina.
Collectively, all 4 bills propose to codify in statute the following general concepts:
- “Conviction of crime” The types of criminal history that an employer is permitted to consider is specifically defined. The House bills seek to limit criminal convictions to felonies, “gross misdemeanors” and misdemeanors involving possible incarceration. The Senate bills involve convictions, guilty pleas, nolo contendere pleas and bond forfeitures for crimes involving possible incarceration. All of the bills specifically exclude consideration of any arrests that did not result in a conviction, expunged convictions and/or charges that were not pressed or dismissed.
- Ban the Box No public or private employer may inquire, consider or require disclosure of an applicant’s criminal record until after either (1) the applicant is selected for an interview, or (2) if interviews are not conducted, a conditional offer of employment is made to the applicant. Employers exempt from this prohibition include the S.C. Department of Corrections, financial institutions (H. 3062 only) and employers with a statutory duty to conduct a criminal background check or otherwise inquire into an applicant’s criminal history.
- Denial of Employment or Licensure No public employer or professional licensing authority[i] may deny employment or licensure on the basis of the applicant’s criminal conviction unless the crime “directly relates” to the position or occupational license sought. Factors that an employer must consider to determine whether a crime “directly relates” to the position or license sought are: (1) the nature and seriousness of the crime; (2) the relationship between the crime and the purposes of regulating the position of public employment or occupation for which licensure is sought; (3) the relationship between the crime and the ability, capacity and fitness required to perform the duties of the position or occupation; and (4) the amount of time since the crime was committed.
- Opportunity to Demonstrate Rehabilitation For public employment, even if a crime is “directly related” to the position, the applicant has an opportunity to present “competent evidence of his sufficient rehabilitation and present fitness to perform the duties of employment.” The bills enumerate several types of evidence, including U.S. Department of Defense Form 214 indicating an honorable discharge or separation under honorable conditions following a criminal conviction, and a statement from a correctional institution at least one year after release showing compliance with all terms and conditions of probation or parole. The public employer must also consider other individualized assessment factors, including all circumstances surrounding the crime and conviction and the applicant’s age at the time the crime was committed.
- Grievance Rights and Enforcement Under the House bills, if an applicant for public employment or occupational licensure ultimately is denied based on his or her criminal history, the applicant may pursue a grievance process under the Administrative Procedures Act. In addition, violations of the “ban the box” provisions by private employers will be enforced by the South Carolina Human Affairs Commission through the imposition of monetary penalties.
- Tax Incentives Under S. 191, an employer is eligible for a state income tax credit for hiring a “qualified ex-felon” for certain threshold amounts of hours. A “qualified ex-felon” is an individual who was convicted of any felony codified under state law and if hired less than 2 years after release from prison, has not been convicted of another criminal offense. At this time, it is difficult to determine whether or when any of the bills will move forward during the Legislative Session, either in their current versions or modified. Although the bills are an attempt to further the goal of gainful employment of individuals with criminal histories, the bills as written appear to be an overreach into the discretion that an employer – whether public or private – exercises in the hiring process. The codification of an employer’s hiring processes and procedures, and the factors that the employer can – and importantly, cannot – take into consideration appear to impose a one-size-fits-all approach to hiring. What’s more, if the proposed requirements are passed primarily in the context of public employment, there is a risk that those requirements will be extended to private employers in the future.
[i] Only the House bills address occupational licensing authorities.