New York EEOC Intends to Enforce “Ban the Box”
May 17, 2012
We have received information through Jackson Lewis attorney, Garen Dodge that Elizabeth Grossman, the lead trial attorney in the New York office of the EEOC recently spoke about the agency’s new guidance on criminal background checks and said that the question on the application—”have you been convicted . . .”—even with all the non disqualifying language is going to be viewed by the agency as a red flag.
Garen mentioned that “the term “Banning the box” is the EEOC’s “best practice” buried in the guidance and not even called a best practice in the recommendations section of the guidance. Here the NY EEOC has announced that “have you been convicted…” language on an application will be a “red flag” triggering further EEOC inquiry. Not even state and local legislation on “banning the box” has gone this far. Employers are asking if they have to delete this question from their applications”.
And unfortunately, we don’t have the answer. We know that neither a mandate nor best practice recommendation were included in the guidance, so it looks as if the New York EEO intends to enforce something that shouldn’t be enforced. This is very troubling for employers that are doing their best to comply with the guidance as written.
You would hope that would temper their plans and that employers could disregard, but as we all know, even if you win in court it can cost you a lot of time and money to defend yourself.