2015 Was A Big Year For Fair Chance Hiring

Lauren Small

2015 was a big year in employment law, with some notable class action lawsuits, a win for the Equal Employment Opportunity Commission (EEOC) against discrimination, and more companies choosing to "ban the box" on job applications.

If you haven't taken a look at your hiring practices recently, now's the time to review them to make sure they're compliant, non-discriminatory, and fair to all candidates. Here's a look at the stories that caught HR's attention this year.

Ban The Box

Ban-the-box initiatives made a lot of progress in 2015. Now, there are 100 cities and counties and 19 states that ban questions about criminal records from job applications. In 2015, Georgia, Ohio, Oregon, New York, Vermont, and Virginia created statewide regulations banning the box on job applications.

For many, checking the box that indicates a criminal record becomes a barrier to employment. Support for fair chance hiring is strong in many states: New York, for example, passed the Fair Chance Act with a landslide vote: 45 yes, 5 no.

The movement also attracted a high-profile supporter. A few weeks ago, President Barack Obama announced many initiatives to reduce the barriers of reentry to society for those with a criminal record. One of the key outcomes of his support is the Office of Personnel Management's announcement that it will propose a rule prohibiting federal agencies from asking about criminal history on job applications.

Class Action FCRA Lawsuits

Class action lawsuits against some of the nation's biggest retailers, including Walmart, Pizza Hut, Whole Foods, and Dollar General, challenged employers' compliance with the federal Fair Credit Reporting Act (FCRA). Alleged violations ranged from failure to make legally required disclosures, to a lack of diligence in the hiring process, to not following proper "adverse action" procedures.

In April 2015, online retailer Amazon.com was sued for not following FCRA compliant procedures in the background screening process of candidates. According to Izzy McLean, FCRA Compliance Analyst, mitigating the most prevalent compliant risks doesn't require complex solutions.

These lawsuits illustrate the importance of making sure your background check practices are FCRA compliant.

Resiliency Of The EEOC

After suffering a loss in EEOC v. Freeman, where the U.S. Court of Appeals ruled in favor of the employer's use of criminal background checks and credit checks, the commission came back and won a huge settlement against BMW.

In EEOC v. BMW, the EEOC was able to prove BMW disproportionately excluded African-American logistics workers from employment when a new contractor applied criminal-convictions guidelines to existing employees. The result was a $1.6 million settlement.

As an employer, demonstrating a "business necessity" for taking criminal conduct into consideration will make sure you are in the clear with the EEOC.

Your Hiring Responsibility

Legal and compliance initiatives in 2015 have helped level the playing field for candidates and making disparities in hiring practices less common. As long as you have compliant and fair hiring practices, you will find your organization making more good hires.

Here are some tips for smart hiring processes that will make sure you stay compliant with the FCRA, EEOC, and ban the box regulations:

  1. Conduct a compliance audit of your hiring practices, including pre-employment screening. Make sure your background check disclosure and authorization documents are clear and conspicuous, and make sure you send a pre-adverse action notice to a candidate prior to making a final adverse hiring decision.
  2. Assign someone in your organization the task of tracking ban-the-box laws so that you're not caught off guard when a fair chance law is passed in your city or state.
  3. Allow job applicants the opportunity to explain any criminal record history on their background reports, and document the back-and-forth communication. This can demonstrate that you performed an individualized assessment for an applicant and help deflect discrimination claims.

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Lauren Small

Lauren Small


Lauren Small is a content and social media expert who writes about hiring, onboarding, and HR best practices. Lauren comes by her HR insight honestly, having observed the culture at diverse employers Amazon, HubSpot, and GoodHire’s parent company Inflection.

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