Employer Use of Arrest and Conviction Records in the District of Columbia

D.C.'s ban-the-box law prohibits employers from asking about criminal history until the later stages of the application process.

For the estimated one in four Americans with a criminal record, job hunting can be difficult. Surveys consistently show that a majority of employers—92%, according to one survey—perform criminal background checks when hiring, at least for certain positions. If your check reveals arrests or convictions, you might find it tough to compete in the job market.

However, there are some legal protections for job seekers with criminal records. Federal laws place some limits on how employers can use these records in making job decisions. The District of Columbia also has important protections for applicants with a criminal history.

Federal Protections for D.C. Job Seekers

Employers are limited by two federal laws when asking about or considering an applicant’s criminal records in hiring:

  • Federal antidiscrimination laws. Title VII of the Civil Rights Act prohibits employers from discriminating against applicants and employees based on certain protected characteristics. While criminal history is not a protected category, the Equal Employment Opportunity Commission has recognized that members of certain groups—particularly African American and Latino men—would be disproportionately impacted by a blanket policy of not hiring applicants with a criminal record. To avoid committing race discrimination, the EEOC advises employers to consider certain factors—including the nature of the crime and the nature of the job—before denying employment.
  • Criminal background check laws. The Fair Credit Reporting Act (FCRA) applies whenever an employer hires a third party to run a background check on a job applicant. Among other things, the employer must obtain the applicant’s written consent and provide written notice if it plans on rejecting the applicant based on the contents of the report. Employers may, however, reject applicants who refuse to authorize a background check.

To learn more about these federal protections, see our article on getting hired with a criminal record.

District of Columbia’s Ban-the-Box Law

The District of Columbia is one of several states with a ban-the-box law. The law, called the Fair Criminal Records Screening Amendment Act, prohibits most employers from asking applicants about their criminal history until the late stages of the application process. The law applies to D.C. employers with 11 or more employees.

Under D.C.’s ban-the-box law, employers cannot ask applicants about criminal history on a job application, during a job interview, or at any other time before a conditional offer of employment has been made. After making a conditional job offer, an employer can ask about—or conduct a background check regarding—an applicant’s conviction records. However, D.C. employers can never ask applicants about arrests or criminal charges that did not lead to conviction. The one exception is that employers can ask about criminal charges that are currently pending.

D.C. employers may not automatically withdraw job offers upon learning of an applicant’s criminal history. They must have a legitimate business reason to deny employment, considering the following factors:

  • how much time has passed since the offense
  • the age of the applicant at the time of the offense
  • the frequency or seriousness of the offense
  • the duties of the open position
  • whether the offense has any bearing on the applicant’s fitness for the position, and
  • any evidence provided by the applicant showing rehabilitation or good conduct since the offense.

If an applicant believes that an employer withdrew an offer because of a criminal conviction, within 30 days, the applicant may request a copy of all records that the employer obtained in considering the applicant for the job, including any criminal records. The employer must also provide the applicant with a notice of his or her right to file an administrative complaint with the Office of Human Rights.

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