Would you interview someone for a position if his or her application reflected a criminal history? It may seem reasonable to stop the application process when a prospective employee reports a criminal conviction, but doing so could expose the business to liability for discrimination claims.
There are two sources of law that Ohio restaurant and hospitality providers should consider before using an individual’s criminal background check to make employment decisions. Many states and municipalities have enacted the “ban the box” legislation, making it illegal for employers to require applicants’ disclosure of any criminal history as a condition of employment. In Ohio, public employers are prohibited from including questions on applications concerning the criminal background of the applicant. Private employers in Ohio are under no such restriction. Federally, the Equal Employment Opportunity Commission (EEOC) has sued employers who considered criminal history in making employment decisions.
Title VII of the Civil Rights Act of 1964 makes it illegal to decline employment to someone because of, among other things, race or national origin. Title VII may be implicated if “disparate treatment” (employer using criminal history information unequally due to race or national origin) is used in the hiring process or for “disparate impact” when a non-discriminatory policy disproportionately affects individuals of a certain race or national origin.
“Ban the Box” Legislation
Since December 2016, more than 150 cities and counties, and 24 states have adopted “ban the box” legislation, prohibiting employers from considering criminal background during the application stage.
What Can A Restaurant Do?
Employers should familiarize themselves with federal, state and local laws on criminal history inquiries. The National Employment Law Project free resource guide documenting legislation in all states, cities and counties may be found at http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.
Jeffrey A. Stankunas and Carolyn E. Gutowski are attorneys at Isaac Wiles (Columbus, Ohio) who counsel restaurant owners and hospitality industry employers on employment matters, including best practices related to hiring. They may be reached at (614) 221-2121, and Stankunas at firstname.lastname@example.org and Gutowski at email@example.com.