New York City’s antidiscrimination statute prohibits the use of job applicants’ criminal history in a discriminatory manner. People with criminal records often find that many employers are unwilling even to consider hiring them, regardless of whether their particular history has any bearing on the job they are seeking. Numerous jurisdictions around the country have enacted “Ban the Box” (BTB) laws, which limit employers’ use of criminal history information during the hiring process. Even in jurisdictions that do not have a BTB law, however, the discriminatory use of criminal history by employers may violate existing antidiscrimination laws if it has disparate impact based on a protected category. A major retailer recently settled a lawsuit alleging that its use of criminal background checks constituted disparate impact discrimination based on race in violation of federal law. Times, et al v. Target Corp., No. 1:18-cv-02993, complaint (S.D.N.Y., Apr. 5, 2018). If you believe you were discriminated against during the hiring process at a company, contact a dedicated New York employment attorney.
The “box” in the name “Ban the Box” refers to the checkbox on many job applications regarding criminal history. Checking that box has often meant that one’s application will go no further—or will go directly in the trash can. The New York City Human Rights Law has BTB provisions making it an “unlawful employment practice” for employers to discriminate based on “convict[ion] of one or more criminal offenses” or “an arrest or criminal accusation.” N.Y.C. Admin. Code §§ 8-107(10)(a), (11)(a). Employers must follow procedures set forth by state law regarding inquiries about criminal history. They may not make any inquiries whatsoever prior to extending a conditional offer of employment. After that, any adverse decision based on criminal history must be reasonably related to the specific job. The employer must notify the applicant in writing of the reasons for the adverse decision, and give the applicant a chance to respond.
A “disparate impact” discrimination claim involves an employment practice that disproportionately affects employees on the basis of a protected category, such as race, even if the employer has no intent to discriminate. The U.S. Supreme Court identified this claim in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The case involved an employer’s policy requiring a high school diploma or an “intelligence test” for certain jobs. Id. at 426. The court found that the policy was a “‘built-in headwinds’ for minority groups” that was “unrelated to measuring job capability.” Id. at 432. Regardless of the employer’s apparent lack of discriminatory intent, the court ruled that it had violated Title VII of the Civil Rights Act of 1964.