Washington D.C. Ban the Box Law Results in Over 365 Investigations

Posted: February 24, 2016

CRIMINAL BACKGROUND CHECK

In June 2014, the District of Columbia City Council passed the “Fair Criminal Record Screening Amendment Act” which is commonly referred to as a ban the box law. The Act, which went into effect December 17, 2014, applies to companies that have ten (10) or more employees in the District of Columbia and delays criminal history inquiries until after a conditional offer of employment has been extended. In addition to regulating criminal history inquiries, the Act prohibits employers from inquiring into arrest information or criminal accusations that are not current pending or did not result in a conviction. Further, employers are only permitted to withdraw conditional offers if a “legitimate business reason” exists. The Act outlines a long list of considerations that must form an employer’s determination of a legitimate business reason such as the time elapsed since the offense occurred, the age of the applicant at the time the offense occurred, the frequency and seriousness of the criminal offense and any information or evidence produced by the candidate regarding rehabilitation and good conduct. The Office of Human Rights (OHR) is responsible for the Act’s enforcement and has published resources for job applicants and employers. As highlighted in its Fiscal Year 2015 Report, OHR investigated 488 complaint inquiries which led to 365 cases being docketed.1 These 365 complaints were part of the broader 832 employment-related cases docketed that represented a stark increase from 2014’s 388 docketed employment cases. Of these cases, the majority were labeled as “Type A complaints” which relate to a criminal history inquiry on an employment application. The others were “Type B complaints” which address an employer inquiring into a candidate’s criminal background before extending a conditional offer. The Report claims that the “OHR has received and docketed far more cases…in part because of the agency’s proactive outreach and trust-building efforts.” Overall $3.69 million was awarded to complainants through settlements via mediation, although it is unclear how much of that amount is attributable to settlements related to the ban the box law. 1 As outlined in the Report, after an initial complaint is filed, an intake interview is conducted through which the OHR determines if it has jurisdiction to hear a case. If the OHR does have jurisdiction, it will docket the case and send it into a mandatory mediation session in an attempt to find a quick resolution to the case. If this is unsuccessful, the ORH will launch a full investigation and send the case to the Commission on Human Rights if probable cause of discrimination is found.