Austin Enacts “Ban-the-Box” Ordinance
On March 24, 2016, the Austin City Council passed the Fair Chance Hiring Ordinance. This ordinance will prohibit most employers in Austin, Texas from asking questions about or considering an individual’s criminal history until after making a conditional offer of employment.
Who is Covered?
The ordinance applies to any “person, company, corporation, firm, labor organization, or association that employs at least fifteen individuals whose primary work location is in the City [of Austin].” There are several exempt organizations, including Section 501(c) non-profit organizations and any “job for which a federal, state, or local law disqualifies an individual based on criminal history.”
What is Required?
Under the ordinance, covered employers may not ask job applicants about their criminal history or otherwise obtain criminal background information on the applicant until after making a conditional offer. The conditional offer must be “conditioned solely on the employer’s evaluation of the individual’s criminal history.” In addition, covered employers may not publish information about a job that states or implies that an individual’s criminal history automatically disqualifies the applicant from consideration for the job.
Much like current EEOC guidance, the ordinance requires an “individualized assessment” to determine whether the employer has a good faith belief that the applicant’s criminal history renders the applicant unsuitable for the job. In conducting this assessment, employers must consider the nature and gravity of any offenses in the individual’s criminal history; the length of time since the offense and completion of the sentence; and the nature and duties of the job for which the individual has applied.
An employer who takes an adverse action against an individual because of criminal history must inform the individual in writing that the adverse action was based on the individual’s criminal history. The term “adverse action” is broadly defined to include “a refusal to promote,” which means the ordinance’s requirements may apply to current employees, not only job applicants.
What are the Remedies?
The ordinance does not provide an aggrieved individual with a private right of action against a covered employer. Rather, an aggrieved individual may file a complaint with the Equal Employment/Fair Housing Office. Civil penalties will not be imposed for violations that occur during the first year that the ordinance is in effect. Violations that occur during that first year will result in a written notice. After the first anniversary, an employer may be liable for a civil penalty of $500.
A copy of the Ordinance may be found here: Austin Fair Chance Ordinance