A new law recently took effect in Ohio that prohibits state agencies and political subdivisions from including any questions about a job applicant’s criminal background on any form or job application. Under the new Ohio Revised Code § 9.73, public sector employers are now limited in how they can inquire about an applicant’s criminal background. While this will stop public employers from instinctively “filtering out” applicants with a “criminal history” checked box, the law is limited in that it does not completely stop those employers from considering criminal histories in making hiring decisions. Plus, an employer is free to include a statement notifying an applicant of any law that disqualifies an individual with a particular criminal history from employment in a position. For example, school districts can state on their applications that Ohio law does not permit the hiring of school employees that have been convicted of violent, sexual, weapons-related, and various other criminal offenses.
Of course, the largest limitation on the law is that it only applies to public sector employers. Nevertheless, private sector employers should be aware that mechanically disqualifying applicants with criminal backgrounds – whether via employment applications or otherwise – could still expose the employer to considerable liability.
Based on the disproportionate rates at which certain races and ethnicities are arrested and/or convicted, the federal Equal Employment Opportunity Commission has issued guidance limiting the use of arrest and conviction records – including records provided by third-party background check services. In some instances, the EEOC’s guidance states the relatively obvious – for example, employers cannot impose different hiring standards on applicants of different races with similar criminal backgrounds (e.g., hiring white applicants with theft offenses, but disqualifying African-Americans based on the same offenses).
Some employers, however, may be surprised to learn that the EEOC also warns against seemingly “neutral” hiring policies if those policies negatively affect a particular race or ethnicity and the employer cannot prove that the policy is “job-related” and “consistent with business necessity.” Proving that relatedness and necessity is the employer’s burden, so it is important that the employer have a legally principled approach to disqualifying such applicants before making the decision.
Though any employer, private or public, may have legitimate concerns about an applicant (theft or fraud, workplace safety, etc.), that employer should tread carefully when disallowing an applicant based on a criminal background. As the law develops, employers are increasingly placed in a position where hiring such an applicant could create liability (e.g., for negligent hiring), yet not hiring the same applicant could also create exposure (e.g., for unlawful discrimination). In such situations, the employer should discuss options with an attorney so that it is in full compliance with the changing landscape of the law.