In December 2023, the California Civil Rights Department (CRD) – the state agency charged with enforcing California’s civil rights laws – filed a “first-of-its-kind” lawsuit against a grocery company over alleged violations of California’s Fair Chance Act which resulted in the unlawful denial of job opportunities to applicants, according to a press release from the CRD.
The Fair Chance Act – a type of law that is also known as a “Ban the Box” law which went into effect on January 1, 2018 – aims to combat discrimination and ultimately enhance public safety by reducing undue barriers to employment for people who have been previously involved in the criminal legal system. Specifically, the Fair Chance Act:
- Generally prohibits employers with five or more employees from asking about a job applicant’s conviction history before making a conditional job offer;
- Requires specific procedures for considering an applicant’s criminal history after a conditional job offer; and
- Limits convictions that employers can consider disqualifying to those that have a direct relationship with job responsibilities.
The lawsuit filed in the Superior Court of California in the County of Los Angeles claims the grocery company ignored and continues to ignore the law’s requirements, including by screening out otherwise qualified applicants on the basis of criminal histories that do not have any adverse relationship with the duties of the job for which they were applying.
“For instance, information obtained by CRD in its investigation indicated that multiple candidates lost their job offers based on convictions for a single misdemeanor count of excessive noise. Other applicants who had convictions from other states for simple cannabis possession were also disqualified,” the CRD press release about the lawsuit stated.
In addition, the grocery company allegedly failed to perform individualized assessments of applicants’ criminal histories, provided inadequate notification about the grounds for the revocation of a conditional job offer, and unlawfully included questions in its job application form seeking the disclosure of an applicant’s criminal history.
As part of the lawsuit, the CRD is seeking monetary damages for the workers who were denied jobs or lost jobs as a result of the grocery company’s screening practices and a court order to require the grocery company to come into compliance with the Fair Chance Act. According to the press release about the lawsuit, the CRD is specifically seeking:
- A trial by jury on all claims;
- Compensatory damages, including lost wages and benefits and mental and emotional distress;
- Punitive damages;
- A halt to violations of the Fair Chance Act; and
- Other relief as deemed appropriate by the court.
“We can’t expect people to magically gain the economic and housing stability needed to reintegrate into their communities and stay out of the criminal legal system without a fair chance at steady employment, particularly when the job has nothing to do with a past offense,” CRD Director Kevin Kish stated in the press release.
“Ban the Box” laws usually delay inquiries by employers into a job applicant’s criminal history until later in the hiring process after a conditional job offer to the applicant. This delay of these questions allows the applicant to be evaluated based on their knowledge, skills, and abilities rather than being prematurely excluded due to their criminal history.
“Ban the Box” – which refers to the box on job applications that applicants are asked to check if they have a criminal record – is a fast-growing nationwide movement. As of the end of 2023, 37 states and more than 150 cities and counties have adopted “Ban the Box” legislation, according to a guide from the National Employment Law Project (NELP).
ClearStar is a leading global Human Resources technology company specializing in background checks, drug testing, and occupational health screening. ClearStar offers a white paper titled “How Do Ban the Box Policies Affect the Hiring Process for Employers?” and an Interactive “Ban the Box” Map to help employers remain in compliance. To learn more, contact ClearStar.
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Thomas Ahearn - Digital Content Editor
Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources (HR) technology company specializing in background checks, drug testing, and occupational health screening. He writes about a variety of topics in the background screening industry including Artificial Intelligence (AI), "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, Equal Employment Opportunity Commission (EEOC), Fair Credit Reporting Act (FCRA), Form I-9, identity theft, privacy, social media screening, and workplace violence.
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