Portland, OR Bans the Box Despite Newly Passed State Legislation

Posted: December 04, 2015


On November 25, the Portland City Council passed a ban the box law impacting private employers via Ordinance 187459 despite requests from some organizations to adopt more of a “wait and see” approach in terms of analyzing the effectiveness of state-level legislation passed in June. Portland’s ban the box law is effective July 1, 2016. Oregon’s state-level ban the box law comes into effect on January 1, 2016 and strictly focuses on the timing of the criminal history inquiry. Under the legislation, employers are prohibited from excluding an individual from an initial interview based solely on the existence of a past criminal conviction. Essentially employers may not require individuals to disclose criminal conviction information on an employment application, prior to an initial interview or, if no interview is conducted, prior to extending a conditional offer of employment. The legislation does not prevent employers from considering an individual’s criminal conviction history when making a hiring decision and does not mandate any additional requirements during the adverse action process. Conversely, Portland’s Ordinance imposes more stringent requirements onto private employers within the city that have six or more employees. Specifically, employers may not inquire into a candidate’s criminal history until after a conditional offer of employment has been extended. Employers may rescind a conditional offer based upon a candidate’s criminal history only after determining “in good faith” that the offense/conduct was “job-related” and “consistent with business necessity”. To conduct this analysis, covered employers must conduct an individualized assessment that analyzes: the nature and gravity of the criminal offense, the time that has elapsed since the offense took place and the nature of the employment held/sought. If the employer wishes to rescind the conditional offer following this analysis, it must first provide the candidate written notice identifying the relevant criminal convictions that are the basis for the decision. Further, Portland’s Ordinance prevents employers from considering the following when making hiring decisions:
  1. An arrest that did not lead to a conviction, except for unresolved or pending charges;
  2. Convictions that have been judicially voided or expunged; or
  3. Charges that were resolved through completion of a diversion or deferral of judgment program for offenses not involving physical harm or attempted physical harm.
The Ordinance does provide for limited exceptions including, but not limited to, positions involving direct access to children, the elderly and persons with disabilities, and positions where a federal, state or local law require consideration of a candidate’s criminal history. Ban the box legislation is a hot topic of discussion in several other cities across the country including Austin, Texas and Los Angeles, California. In Austin, the City Council plans to evaluate the issue further in early 2016, and the Los Angeles City Council recently instructed the city’s attorneys to draft a ban the box ordinance for consideration.