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Bad Policy Central ~ Portland May Hop On “Ban The Box” Bus

March 26, 2015

By Michael G. McClory

The Bullard Edge is apoplectic.  The City of Portland is considering establishing “people with criminal histories” as a protected class in employment through the adoption of a “ban the box” ordinance.  These types of ordinances are sweeping the country.  They protect persons convicted of crimes to a limited extent from being subject to adverse employment actions (e.g., decisions not to hire and decisions to terminate) because of their criminal history status.
 
The proposed Portland ordinance is adventurously titled “Removing Barriers to Employment to establish procedures for the use of criminal history information by employers within the City.”  As detailed in the next section, it would impose significant new burdens and risks on covered employers.  For that reason, it is meeting with reasoned resistance from the employer community.
 
Admittedly, The Bullard Edge does not like the proposed ordinance.  The title is a mouthful and the concept of creating a protected class of convicted criminals is a hard sell.  For that reason, we have attempted to devise a slogan that concisely captures the gist of the proposal.  Which of the following sounds best?
  • Commit a crime, gain job protections.
  • Best qualified?  Try recently paroled.
  • Who says crime doesn’t pay?

None of these (tongue in cheek) slogans are intended to make the proposed ordinance sound more palatable.  They simply reflect the visceral response that some have to the “ban the box” movement.  Setting that aside for the remainder of the post, we will take a closer look at the specifics of the proposal and then briefly address the social policy that inspires local governments, like the City of Portland, to adopt “ban the box.”
 
Overview Of The Portland Proposal
 
The proposed ordinance would regulate when and how a covered “employer” may make “adverse employment decisions” based on a person’s “criminal history.”
 
  • Covered “employer” means the City of Portland and any private employer of six or more persons within the City of Portland.  It does not include smaller private employers or any public employers other than the City of Portland.
     
  •  “Adverse employment decision” means a decision “to discharge a person, or decline to hire or promote a person, or to revoke a person's Conditional Offer of Employment.”  
     
  • “Criminal history” is not specifically defined by the proposed ordinance.  It is implied, though, that a person’s conviction history is the only portion of the criminal history that may be considered at any time (an employer may not consider arrests where charges are no longer pending, judicially voided or expunged convictions, or charges resolved through diversion or deferral).

Hiring
In hiring, the ordinance generally would make it unlawful for an employer to “consider a person’s criminal history” prior to the making of a “conditional offer of employment.”  An employer would not be permitted to inquire about criminal history on the employment application (that “box” is “banned”) and absent an exception would not be able to ask about it during an interview.
 
  • A "conditional offer" is one that depends only on the results of a criminal background check or another expressly communicated contingency (such as a post-offer, pre-employment medical examination that is permitted under the ADA).
     
  • ​There are exceptions to the general rule for certain types of work (such as employment in positions having direct access to children or other enumerated vulnerable populations, in law enforcement or private security, and/or in professions or trades requiring licensure or other authorization from Oregon).   
     
  • There also is an exception where a person voluntarily (without being asked) discloses a criminal history, in which case the employer may discuss that disclosure with the person.

An employer may consider a person’s criminal history (conviction history, specifically) after a conditional offer has been made.  However, rescinding the offer is not easy.  The proposed ordinance provides that the employer may do so only where, based on “an individualized assessment” of the criminal history the employer “determines in good faith that a specific offense or conduct has a direct relationship to a person’s ability to perform the duties or responsibilities” of the offered position.  For the determination, the employer may consider the nature of the offense, the time since the person committed the offense and the nature of the offered position.  That is it.  There is no express permission to consider any other factors, such as:
 
  • Character;
  • The potential impact of the hire on the company’s goodwill;
  • Religion; and/or
  • Trust.

Moreover, if an employer decides that rescinding an offer is appropriate, it must notify the person in writing of the decision.  The notice, though, is not a simple “thanks but no thanks” note.  It must include with it:
 
  • A written copy of any criminal history report considered by the employer;
  • A description of the person’s right to seek reconsideration of the rescission; and
  • A notice informing the person that s/he may file a complaint against the employer.

Should the person seek reconsideration, the employer has two days to conduct an even more detailed “individualized assessment” than the one originally undertaken.
 
Complaints Of Unlawful Discrimination
The proposed ordinance provides that the City will establish rules related to the filing of complaints.  It appears that the City will investigate filed complaints, determine whether “it appears based on the facts that a violation may have occurred” and issue a notice to the employer when such a determination is made.  The employer will then be afforded an opportunity to respond.
 
After receiving an employer's response “the City may conduct conciliation efforts to remediate such violations.”  If conciliation fails, or if no employer response was filed, the City will decide whether to file a complaint with its Code Hearings Officer where civil penalties of up to $1000 may be assessed.
 
The Policy Behind The Proposal
 
The City’s proposal is fairly transparent.  Preceding the proposal itself, the “ban the box” proponents outline a series of conclusory findings as justification.  They note that it is difficult for persons with criminal histories to find jobs, that these persons and their families suffer as a result, and that employing persons with criminal histories improves public safety and lessens recidivism.  Further, the proposal posits that employment barriers resulting from a criminal history “disproportionately affect historically disadvantaged communities and communities of color.”
 
Even if we assume all of these “findings” to be supportable, the justification for visiting the burden of the proposed ordinance on employers is not self-evident.  Here are at least four arguments against punishing employers who do not want to employ persons previously convicted of crimes.
 
  1. The process leading up to the conditional offer is artificial.  Employers are not allowed to fully screen and interview candidates.
     
  2. The process leading up to the conditional offer is contrary to the motivation of other civil rights measures.  Title VII, the ADA and other civil rights laws encourage employers to hire the best candidate based on the merits.  In contrast, "ban the box" forces employers to ignore a significant component of merit.  
     
  3. Forcing employers to hire more persons convicted of crimes (usually convicted by a jury of their peers) is not the way to “fix” the criminal justice system.
     
  4. Employers of as few as six are now going to have to incur more expense and more risk.  

There ought to be vigorous discussion about the criminal justice system, about barriers to education and employment, and about numerous other societal issues.  "Ban the box" is not the answer to any of these matters.
 
The Bullard Edge is interested in your constructive feedback.  If you agree, please let us know why.  Similarly, if you disagree, we would like to know why.
 
 
Best regards,
 
The Bullard Edge
 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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