If it is approved in the next Florida legislative session, a proposed new state law would prohibit private employers from inquiring into, or considering, a job applicant’s criminal history on an initial employment application.

Such screenings would only be allowed after the employer has determined that a job applicant meets the minimum requirements to qualify for a job offer.

Bill SB-214, introduced in Tallahassee on December 23, 2014, by State Senator Jeff Clemens (D-Lake Worth), is entitled “An act relating to discrimination in employment screening.” It seeks to address what Clemens describes as a statewide need to reduce barriers to employment for people who have a criminal history, with the goal of lowering unemployment rates in communities that have concentrated numbers of people who have a criminal history.

According to the preface to the proposed new law, “Restricting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application increases employment opportunities for those who have a criminal history, thereby reducing the rate of recidivism and improving economic stability.”

The new statute, to become effective on July 1, 2015, if approved, provides as follows:

Unlawful employment screening.—Unless otherwise required by law, an employer may not inquire into or consider an applicant’s criminal history on an initial employment application. An employer may inquire into or consider an applicant’s criminal history only after the applicant’s qualifications have been screened and the employer has determined that the applicant meets the minimum employment requirements specified for a given position.

Clemens’ proposal tracks the position on job applicants’ criminal histories adopted by the United States Equal Employment Opportunity Commission (EEOC), the Washington-based agency that enforces federal laws against employment discrimination.

The EEOC believes that an employer’s use of an individual’s criminal history – especially if focusing on arrests rather than convictions — in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.

A violation may occur when an employer treats criminal history information differently for different job applicants, based on their race or national origin, so that disparate treatment results. According to the federal agency, national data supports a finding that criminal record exclusions have a disparate impact on job seekers based on race and national origin.

Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.

Furthermore, African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) was expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged. This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). Based on a state-by-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites.

Thus, according to the EEOC, an employer’s neutral policy (e.g., excluding all job applicants right away from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, especially minorities, and may violate the law if not job related and consistent with business necessity.

Therefore, the EEOC recommends that employers develop a targeted initial criminal history screen for job applicants that considers the nature of the crime(s), the time elapsed since the offense(s), and the nature of the job. The employer’s policy should then provide an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. Applicants with a criminal history should be provided an opportunity to explain their circumstances and personal history before a final employment decision is made.