Ban The Box – Removing Criminal History Questions From Hiring Applications

By Amelia J. Bresette

On January 1, 2021, the City of St. Louis’ “Ban the Box” ordinance took effect, impacting employers within the City of St. Louis with 10 or more employees. The ordinance is intended to ease barriers to employment for applicants with criminal histories by restricting when and how employers can inquire about and use an applicant’s criminal history when making hiring and promotional decisions.

Under the ordinance, affected employers are prohibited from:

  1. basing a hiring or promotional decision on an applicant’s criminal history or related sentence unless the employer can demonstrate that the decision is based on all available information including the frequency, recentness, and severity of the criminal history and that the history is reasonably related to or bears upon the duties and responsibilities of the position;
  2. inquiring about a job applicant’s criminal history until the employer has determined that the applicant is otherwise qualified for the position, and only after the applicant has been interviewed for the position (such inquiry may be made of all job applicants in the final selection pool);
  3. publishing job advertisements excluding applicants on the basis of criminal history;
  4. including statements in job application forms and other forms used in the hiring process excluding applicants on the basis of criminal history;
  5. inquiring into or requiring applicants to disclose their criminal history on initial job application forms and other forms used in the initial phase of the hiring process; and
  6. seeking to obtain publicly available information concerning job applicants’ criminal histories.

Prohibitions 3-6 do not apply to positions where federal, state, or city laws, regulations, or ordinances prohibit employers from employing individuals with certain criminal histories.

Consequences of violation include a warning or order to comply within 30 days for a first violation, an order to comply within 30 days and a civil penalty for a second violation, and potential revocation of the employer’s business operating license for a third violation.

Going forward, employers should review and update all hardcopy and electronic forms, advertisements, and other materials used in the hiring or promotional process to ensure compliance with prohibitions 3-5 of the Ordinance. Employers should also ensure that current employees involved in the company’s hiring and promotional process are educated about the Ordinance’s requirements.

Amelia J. Bresette is a law student at Washington University in St. Louis with an expected graduation date of May 2022. She is a 2021 Summer Law Clerk at Carmody MacDonald in St. Louis. After graduation, she plans to focus her practice on transactional law.

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