A twitter follower recently
posted an interesting question “How is Philadelphia’s new ‘ban the box’ law
constitutional?” So called “ban the box” laws, prohibit employers from
asking job applicants about criminal convictions during the job interview
process. In 2011, Philadelphia passed a “ban the box” law that prohibited
private employers from asking applicants about or requiring applicants to
disclose any criminal convictions in the application process or during the
first job interview. The law only applied to employers of 10 or more.
Last week,
Mayor Nutter signed into law a bill expanding the breadth of Philadelphia’s
“ban the box” law. First, the new law applies to virtually all employers
because it applies to any employer of “one or more” employees. Second, in
addition to banning an employer from asking questions about prior convictions
during the initial interview, it bans employers from asking about convictions
until after a conditional offer of employment is extended. Moreover,
employers must ignore convictions occurring more than seven years ago.
(So, say hello to the rapist in the next cubicle, just don’t ask him
about his rape conviction!) For a complete run down of the new rules,
check out the blog post from
employment law gurus Littler.
Philadelphia is one of several
municipalities and states that have passed “ban the box” ordinances in the last
few years. However, I am not sure any go quite as far as Philadelphia’s
new ordinance. Proponents of these laws claim they are anti-poverty
initiatives aimed at bringing felons into the workforce and offering them
employment. Opponents believe that these rules are simply the by product
of the left wing mindset that refuses to confront uncomfortable truths and
refuses the see the world as it is.
But I digress, back to the
constitutional question. Employers have the same First Amendment right to
free speech as individuals. Prohibiting an employer from asking certain
questions is a restriction on speech. Whenever a law seeks to restrict a
fundamental constitutional right, like free speech, Courts will apply a strict
scrutiny test to the law. Under that test the law will survive only if it is
narrowly tailored to advance a compelling state interest. If the
Philadelphia’s ban the box law were ever challenged, it may not survive strict
scrutiny because the City would bear the burden of showing that its restrictions
actually would advance its interest in gaining employment for criminals.
Moreover, the law is not narrowly tailored in that it prohibits a wide range of
speech during the application and interview process.
We will have to see if a brave
employer challenges Philadelphia’s new law or if Philadelphia will be permitted
to treat the Bill of Rights as a menu of rights it can choose from rather than
a collection of rights guaranteed to all citizens.
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