Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On February 1, 2018, the Kansas City, Missouri, City Council passed restrictions on employers’ inquiries into, and use of, criminal record information. The ordinance becomes effective on June 9, 2018. The City had already removed the criminal history question from employment applications for government positions in 2014. Similar to the Missouri Human Rights Act, the ordinance applies to private employers with six or more employees.
Under the new ordinance, employers may not inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. The inquiry may then be made of all applicants who are “within the final selection pool of candidates.”
The ordinance, however, is not just about employment application content or criminal record inquiries. Like recent laws in other jurisdictions,1 the ordinance also limits employers’ substantive hiring decisions. Paralleling the EEOC’s guidance,2 the ordinance requires an employer basing a hiring or promotion decision on an applicant’s criminal history to be able to demonstrate that the decision was based on “all available information” including consideration of the frequency, recentness and severity of criminal record. Ultimately, employers may only take adverse action based on criminal record information if the offenses are “reasonably related to the duties and responsibilities of the position.” The ordinance does not apply, however, if the employer is required to exclude applicants with criminal convictions due to a local, state, or federal law or regulation.
The ordinance’s new restrictions were drafted as amendments to the pre-existing Kansas City Human Relations Act. As such, violations of the new "ban-the-box" requirements will be handled by the Kansas City Human Relations Department, which is charged with investigating, conciliating, and prosecuting alleged violations of the Act. The remedies will also be the same as those for other Human Relations Act violations: civil penalties, reinstatement, back pay, and actual damages.
Before the effective date, employers with applicants who live or work in Kansas City should assess whether they are covered by the new Ordinance and if so, should assess whether they need to do the following:
- Revise job applications, interview guidelines, and policies and procedures for interviewing applicants and offering employment.
- Review and make necessary changes to the sequence and timing of asking about an applicant’s criminal history.
- Implement guidelines and documentation that comply with the new Ordinance.
1 See, e.g., Rod Fliegel and Allen Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017).
2 See Rod M. Fliegel, Barry Hartstein, and Jennifer Mora, EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers, Littler Insight (Apr. 30, 2012). Notably, a Texas federal court recently rejected the EEOC's updated guidance. See Rod M. Fliegel and Molly Shah, EEOC's Background Check Guidance Suffers Loss in Texas Federal Court, Littler ASAP (Feb. 5, 2018).