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Is “Ban The Box” Coming To South Carolina?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on several grounds, including race, color, gender/sex, national origin, and religion. One characteristic it does not exclude from discrimination is past criminal history. While employers are entitled to ask questions regarding past criminal history, more and more companies and locales are participating in what are called ‘ban the box’ campaigns, meaning that they are removing the check box from their job applications that asks about whether one has a past criminal history. This has been hailed by many as an advance in human rights, but some jurisdictions have declined to participate.

No Legislation In SC

As of this writing, only York County has enacted any kind of ban-the-box legislation in South Carolina. There have been numerous pieces of legislation proposed in the state in the last two years, most of which have followed similar patterns, including specific items like restricting which criminal history employers are permitted to inquire about. All of the proposed bills, for example, explicitly banned asking about any kind of arrests that did not result in a conviction, despite such arrests still being part of a person’s criminal history.

The bills proposed also all would prohibit asking anything about criminal history until further into the hiring process. This is seen as simply common sense by many. An employer can establish their bona fides to hire or not hire the person long before such potential issues would appear. It is only in public employment, however, that all the proposed bills would have contained a grievance procedure for denied applicants who could demonstrate that it was due to their criminal history. It remains to be seen whether any of these bills will be reintroduced.

De Jure vs De Facto Discrimination

For now, while no specific antidiscrimination law exists regarding criminal history, it is important to keep in mind that it can still help give rise to claims under Title VII if an employer decides to do so. While it is not illegal to discriminate based on criminal history, it is illegal if an employer decides to discriminate on that basis in a manner which implicates any of the proscribed grounds under Title VII. For example, if an employer only asks applicants of color any questions about criminal history, that is arguably actionable as it can be alleged that the employer is discriminating on the basis of race. This is discrimination in practice, also referred to as de facto discrimination. This is opposed to de jure discrimination, which is discrimination enshrined in law.

If de facto discrimination has not occurred in your case, there may not be much recourse that you have to seek redress if an employer declines to hire you due to criminal history. Unfortunately, unless you are in a jurisdiction that prohibits the practice, employers may discriminate on a specific ground if they believe it would be beneficial to their business to do so.

Call An Employment Discrimination Attorney

While ban the box legislation is still a hot-button issue in many jurisdictions, it remains to be seen whether or not it will be passed in South Carolina. In the meantime, consider calling an experienced employment discrimination lawyer to help answer your questions on potential issues. Attorney A. Christopher Potts is ready, willing and able to assist you.

Contact the Charleston firm of Hitchcock & Potts to schedule a consultation today.

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