To avoid potential legal liability, employers should avoid asking questions of applicants that are intended to or could accidentally require disclosure of protected information or reveal membership in a protected class. In addition to the broader implications of protected classes, employers must also be aware of specific information they are prohibited against seeking from applicants prior to certain points in the hiring process. Instead, employers should focus pre-employment questions to solicit information related only to the qualifications for successful job performance.
Oregon’s “ban the box” law makes it unlawful for an employer to inquire about criminal convictions before the interview stage of hiring.
Named for the criminal convictions check box found on many employment applications, “ban the box” legislation targets a range of hiring practices that tend to create barriers to employment for ex-offenders and have a disparate impact on applicants of protected classes, such as race and national origin.
- Is there any information that employers are prohibited from asking on an application?
Employers may not require an applicant to disclose the following information on an application for employment:
- Salary history
- Criminal convictions
- Employers are also prohibited from discriminating against applicants who are not currently employed.
- When may an employer ask about an applicant’s salary history?
An employer may confirm an applicant’s salary history once a conditional offer of employment, including compensation, has been made.
- When may an employer ask about an applicant’s criminal history?
Under Oregon’s “ban the box” law, an applicant may not be excluded from an initial interview solely because of a past criminal conviction, which means that an employer may not require an applicant to disclose a criminal conviction on a job application or prior to an initial interview. If no interview is conducted, an employer may not require an applicant to disclose a criminal conviction prior to making a conditional job offer.
Under the more stringent Portland “ban the box” ordinance, an employer may consider an applicant’s criminal history in the hiring process only after making a conditional offer of employment. This means that an employer violates the ordinance if it accesses an applicant’s criminal history prior to making the conditional job offer. If a criminal history is used to make the employment decision, an employer must make a good faith determination that a specific offense or conduct is job-related and consistent with business necessity.
See more questions on “ban the box” below.
- If a job has specific physical requirements, may an employer ask about an applicant’s ability to perform the job without violating the law?
Employers may ask questions relating to an individual’s ability, with or without accommodations, to perform the essential functions of the job for which they are applying. Employers are prohibited by law from asking about an applicant’s disability, physical or mental, or discriminating against an individual based on their actual or perceived disability.
- May an employer ask an applicant to undergo a medical examination prior to employment?
An employer may not make any medical inquiries or require an applicant to take part in a medical examination until after a conditional offer of employment has been made and then only if the exam is required of all new employees in the same category.
- What are some other types of questions that employers should avoid asking applicants?
Employers should avoid asking questions on an application or during an interview that may (or are designed to) require an applicant to identify membership in a protected class or disclose protected information. While this is not a complete list, below are some examples of typical questions asked of applicants or employees that can actually lead to violations of the law.
- Employers should avoid questions asking for personal information about an individual’s race, sex, age, and marital status.
Were you born in the U.S.? Are you a US citizen?
It is better to state that if hired, a new employee must present documentation sufficient to establish work authorization in the United States.
What is your birthdate? How old are you?
If an applicant’s age is necessary for legal reasons, an employer should ask whether the applicant is over the required age, e.g. Are you over 18? Are you over 21?
What is your race? Gender? Furnish a photograph.
If it is necessary to ask for this information for affirmative action purposes, such inquiries should be accompanied by a statement indicating that the information is needed for affirmative action reporting purposes and will not be used for any other purposes. A photograph should not be required unless physical appearance is a bona fide occupational qualification for the job.
Are you married? Divorced? Separated?
It is unlawful to discriminate based on an applicant’s marital status.
- Employers should avoid questions asking for information typically evaluated differently for men and women, such as questions regarding child care arrangements, plans for future children./dt>
How many children do you have? Are you pregnant? Do you plan to start a family?Questions asking for information that could be used to screen out members of protected classes.
Oregon law clearly states that discrimination on the basis of pregnancy is sex discrimination. According to the law, pregnant employees must receive the same benefits as other employees in similar job classifications.
Have you ever applied for workers' compensation or been injured on the job?
This question is unlawful under the federal Americans with Disabilities Act. In addition, Oregon employers with six or more employees cannot refuse to hire an applicant because of that person's prior workers' compensation claims.
What is your religious affiliation? Are you able to work Saturdays and Sundays?
It is unlawful to discriminate against an applicant due to their religion, or lack thereof. Employers are also required to reasonably accommodate an applicant’s sincerely held religious beliefs, which may include not working on certain days of the week. If working a particular schedule is an essential function of the job, simply state that fact and ask whether the applicant is able to work the schedule.
Do you have any relatives currently employed in this company?
An employer cannot refuse to hire because the applicant has a relative working for the same company, unless one family member would work in a supervisory capacity over the other, or unless the employer could demonstrate the existence of some other bona fide occupational qualification.
Do you smoke?
While employers have the right to enforce fragrance free workplace policies and Oregon’s Indoor Clean Air Act requires almost all employers to maintain smoke-free workplaces and display “no smoking” signs, Oregon law prohibits discrimination based on lawful off-duty tobacco use.
- Which employers are covered by “ban the box” laws?
Oregon’s “ban the box” law covers all Oregon employers.
The Portland ordinance covers any employer with six or more employees when they employ someone for a position being performed a majority of the time within Portland. (The Portland ordinance does not include the United States Government; the State of Oregon and any office, department, agency, authority, institution, association, society or other body of the state, including the legislature and the judiciary; any political subdivision of the state of Oregon or any county, city, district, authority, public corporation or public entity other than the City of Portland, or employers with fewer than six employees.)
- What counts as an unlawful employment practice?
Under Oregon’s “ban the box” statute, it is an unlawful practice for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction. ORS 659A.360(1). That means an employer may not require an applicant to disclose a criminal conviction on a job application or prior to an initial interview. If the employer doesn’t conduct an interview, it may not require an applicant to disclose a criminal conviction prior to making a conditional job offer. Review generic employment application forms – especially those found online or at office supply stores – to make certain they do not include any question on criminal history. With a few narrow exceptions, employers may no longer ask questions about criminal convictions at the early stages of the hiring process.
Under the Portland ordinance, employers may not exclude an applicant from consideration for a job solely because of the applicant’s criminal history. Portland City Code Ch. 23.10.030.
An employer may not lawfully access an applicant’s criminal history prior to making the conditional job offer. Even if an applicant self-discloses a conviction, the employer would need to disregard it until after making a conditional offer of employment. Apart from a few narrow exceptions (see below), employers may only consider an applicant’s criminal history after making a conditional offer of employment.
- Does this mean that employers are not allowed to do background checks anymore?
No, neither the state law or the Portland ordinance prevents employers from considering an applicant’s history of criminal convictions in making the final hiring decision. The “ban the box” requirements also do not prohibit employers from letting applicants know during recruitment that criminal background will be considered. Employers are still able to make a job offer contingent upon consideration of an applicant’s criminal record.
Note that overreliance on background checks can create problems for employers. Many databases contain errors and do not reflect the ultimate disposition of the cases. A conviction may have been reversed on appeal or may have been entered into on a deferred judgment basis, meaning that the guilty plea is withdrawn and the charge is dismissed if certain terms of the plea agreement have been met. Many people have similar names and instances of mistaken identity are common.
The Equal Employment Opportunity Commission (EEOC) has also issued guidance stating that use of criminal background checks in employment decisions may have a disparate impact based on protected classes, such as race and national origin. The EEOC guidance suggests employers used an individualized screen to determine whether excluding an applicant because of criminal history would be job-related and consistent with business necessity. Targeted screening should take into account 1) how recent the conviction is, 2) how severe it is, and 3) how it relates to the job. The process should also allow the applicant to explain the circumstances of a conviction.
Remember that whenever you use consumer reports – such as third-party criminal background checks, credit checks or drivers’ license records – to make employment decisions you are required to follow the notification provisions of the federal Fair Credit Reporting Act. For more information, visit the Federal Trade Commission.
- Do I have to hire candidates with criminal records?
Under state law, there is no requirement that an employer hire an individual with a conviction record. The Portland ordinance is likewise clear that it is not unlawful for an employer to rescind a conditional offer of employment based upon an applicant’s criminal history. Before an employer rescinds a job offer based on a specific conviction, however, the employer must first make a good faith determination that the decision is job-related and consistent with business necessity. This requires that the employer conduct an individualized assessment (like that recommended by the EEOC) which considers:
- The nature and gravity of the criminal offense;
- The time that has elapsed since the criminal offense took place; and
- The nature of the employment held or sought.
In addition, an employer may not consider arrests not leading to a conviction, except where a crime is unresolved or charges are pending against an applicant; convictions that have been judicially voided or expunged; or charges that were resolved through the completion of a diversion or deferral of judgment program (unless the offense involved physical harm or attempted physical harm to a person).
An employer that rescinds a conditional offer of employment must notify the applicant in writing of its decision and identify the relevant criminal convictions on which it based the decision.
- Are there exceptions to these “ban the box” requirements?
The statewide provisions and Portland ordinance do not apply in the following circumstances:
Under the Portland ordinance, an employer may also consider an applicant’s criminal history prior to a conditional offer of employment for positions that:
- Federal, state or local law, including corresponding rules and regulations, requires the consideration of an applicant’s criminal history;
- The employer is a law enforcement agency;
- The employer is in the criminal justice system; or
- An employer is seeking a nonemployee volunteer.
- Involve direct access to children, seniors, persons with disabilities, mental illness, or alcohol or substance dependence;
- Present increased public safety concerns (as determined by administrative rule or business necessity);
- Are designed to encourage employment of those with criminal histories (as designated by the employer as part of a federal, state or local government program); or
- Involve one or more of the following:
- Master key holders, including maintenance personnel
- Tow truck operators (may access DMV driving record as well)
- Drivers of goods, equipment, personal property and persons (may access DMV driving record as well)
- Access to confidential and/or sensitive info (personnel, medical, discipline records, etc.)
- Mandatory insurance bonding.
For these positions, the Portland Ordinance also permits the use of its own screening matrix in place of an individualized assessment.
Applying these exceptions can be complicated; you may wish to contact a qualified employment law attorney for specific advice.