Should religious employers jump on the “ban the box” bandwagon?

The criminal background check has been a staple of the employment process for years. Many religious organizations use it to screen potential employees and volunteers. But recently, the news has been filled with reports of the “ban the box” movement, questioning the traditional role that checking possible criminal history has played in the hiring process. If your ministry asks potential volunteers or employees about any criminal record, do you need to throw out your application and start anew? Here is a basic overview of this changing legal landscape.

What Is “Ban the Box”?

The “ban the box” movement (also called “fair chance” hiring) is a campaign to eliminate the requirements that job applicants “check a box” on an employment application to indicate whether they’ve ever been convicted of a crime. The movement has been successful. Several state and local governments have passed laws requiring companies to remove this question from the initial application. The goal of these laws is to encourage companies to avoid automatically screening-out former criminal offenders who may otherwise be qualified for open jobs.

These laws vary greatly. In some states, compliance with these requirements is mandatory for all employers. In others, only companies with a certain number of employees and those that don’t fall into a number of available exceptions are subject to the act. The laws range significantly in when employers can ask about criminal backgrounds. A proposed “ban the box” law was before the Colorado General Assembly this past legislative session, but failed to be enacted into law.

Do Any Federal Laws Restrict the Use of Criminal Background Checks?

Several federal laws apply to regulate how criminal background checks can be used. The most prevalent is the Fair Credit Reporting Act (FCRA). This law does not restrict employers from asking about criminal history, but it does regulate how employers can use third-party reporting agencies to get this information. For the most part, complying with these laws is fairly straight-forward and has not really limited how employers could make hiring decisions.

Another federal law that might limit the use of criminal background checks in some cases is Title VII of the Civil Rights Act of 1964—the federal anti-discrimination law that makes it illegal to discriminate on race, color, religion, national origin, sex. Recently, the federal agency in charge of enforcing this law has argued that having a policy that automatically excludes people with a criminal record disproportionally affects certain classes of people, to the point that it is a discriminatory practice. For example, last year, a company in South Carolina was ordered to pay $1.6 million to alleged victims of race discrimination to settle a lawsuit filed by the EEOC on this theory. The agency does not appear to have reflected seriously on the point that assuming you, as a minority, are more likely to be a felon, is rather insulting.

Does My Ministry Need to Worry about Banning the Box?

Maybe. According to the National Employment Law Project, nine states—Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont—all have restrictions on what private employers can ask about conviction history on job applications.¹ Many more cities and counties have enacted similar ordinances. Some laws simply require the employer not ask about criminal history until the interview, others restrict it until after a conditional job offer. Depending on where your church or ministry is located, you may want to consult with an attorney to be sure you remain on the right side of the law.

While Seeking Legal Counsel Specific to Your Situation Is Always Preferable, Here Are Some Best Practices That May Also Be Helpful:

1. Keep it relevant. You are much less likely to get into trouble for asking about criminal background history if the question is highly relevant and thus obviously not asked with intent to discriminate. For instance, for child safety purposes, background checks for crimes endangering children are necessary. For jobs requiring high degrees of financial responsibility, crimes related to financial misconduct, such as fraud or embezzling, would be very relevant.

2. Remember that background checks don’t tell the whole story. The trend away from reliance on background checks may be a good thing. Background checks and criminal histories often do not adequately address whether a person is qualified to work with children or to lead a ministry. More robust screening, particularly when the employee or volunteer is working with vulnerable populations or will have great responsibility, is best practice, whether or not you are doing criminal background checks. For example, churches or other ministries screening children’s ministry workers should require references and be sure to follow up on those references.

3. Take another look at your current policies. As hiring decisions continue to be subject to increased scrutiny, well-drafted and properly implemented policies can go a long way toward protecting organizations from liability. Consider developing policies around how hiring decisions are made and train the decision-makers in the appropriate times to raise criminal history.

4. If you are a religious organization, don’t forget it about that when hiring! Regardless of whether your ministry is covered by a ban the box law or by Title VII, for religious organizations, screening on adherence to religious doctrine, agreements with statements of faith, or other similar topics is proper. Emphasizing the clearly permissible factors first is always a good idea. Consultation with an attorney familiar with religious and ministry law can ensure your policies and hiring processes are uniquely tailored to take advantage of the protections in the law available to religious employers.

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¹http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/