Should Tribes “Ban the Box”?

Should Tribes “Ban the Box”? BY KATYA LANCERO NORRIS

So-called “ban-the-box” legislation (also sometimes called “fair chance” legislation) arose from the idea that employers should consider a candidate’s qualifications first—without the stigma of a checked box on a job application reflecting a history of a past criminal arrest or conviction. In this way, banning the box provides a second chance for individuals with a criminal record.

Specifically, ban-the-box laws provide applicants with a fair chance at employment by removing criminal background questions from job applications and delaying criminal background checks until later in the hiring process. Ban-the-box laws contain carveouts providing that the law does not apply in the event another law prohibits hiring individuals with criminal backgrounds into the position or otherwise requires criminal background checks to be conducted earlier in the hiring process.[1]

State, County, and City Laws

Most ban-the-box laws apply to public-sector employment in the context of employment by the particular state, county or municipality that enacted the law. Based on information from the National Employment Law Project gathered in 2021, 37 states and the District of Columbia enacted ban-the-box laws for public sector employers, and 15 have extended those laws to cover private-sector employers.[2] In addition, over 150 cities and counties have enacted ban-the-box ordinances, with 22 of those jurisdictions applying such ordinances to private employers.[3]

While ban-the-box laws generally prohibit inquiring about criminal history on an initial employment application, they vary in several ways. For example, whether they may vary in whether they apply to private employers operating within the jurisdiction and at what stage in the hiring process a criminal background check may be requested. Some laws require the employer to determine whether an applicant is qualified for a position before conducting a criminal background check. Others prohibit inquiring about criminal history until after the first interview. In addition, some laws restrict employers from conducting a criminal background check until after the employer deems the candidate a finalist and conveys a conditional offer of employment.

Federal Ban-the-Box Law

On December 20, 2019, President Trump signed into law the Fair Chance to Compete for Jobs Act of 2019, restricting federal agencies and federal government contractors from inquiring about an applicant’s criminal history before making a conditional offer of employment unless certain exemptions apply, such as for law enforcement positions and positions that, by law, require the employer to conduct a criminal background check prior to making a conditional offer of employment.[4]

Indian Tribes and Tribal Ban-the-Box Laws

Indian tribes are sovereign nations possessing the right to enact their own laws governing matters internal to the Indian tribe.[5] Based on the author’s limited research and consulting with human resources employment law professionals working in Indian country and other in-house counsel for Indian tribes, Indian tribes have not yet promulgated ban-the-box laws.[6] In researching job applications posted online, some tribal employers do ask about criminal backgrounds on the initial job application.[7] Other tribal employers ask about criminal history on the initial job application but explain that a criminal history is not an automatic bar to employment and that certain factors will be considered in evaluating an applicant’s criminal history compared against the particular job duties.[8] In addition, some tribal employers already delay inquiries into criminal histories until after a conditional offer is made, and others only require criminal background checks for specific positions.[9]

Mandated Criminal Background Checks

Various laws in Indian country prohibit individuals from holding certain positions due to prior criminal conduct. For example, under the Indian Child Protection and Family Violence Prevention Act, criminal background checks are mandatory for individuals seeking employment in positions involving contact with Indian children. For casino employees, Arizona’s tribal gaming compacts and federal laws prohibit individuals from being employed in certain positions due to prior criminal conduct. And health care institutions regulated by the Centers for Medicare & Medicaid Services (CMS) operating on Indian reservations must follow CMS criminal background requirements.

As with other ban-the-box laws, any such legislation promulgated by an Indian tribe can carve out those positions for which a separate law prohibits an individual from holding a job due to prior criminal conduct.

Why Should Indian Tribes Ban the Box?

Proponents of ban-the-box legislation contend that such laws increase employment opportunities and reduce recidivism, as employment has been found to reduce recidivism. And reduced recidivism rates enhance public safety. Moreover, more people employed means more taxpayers, less public assistance needed, and a stronger economy for Indian tribes, leading to strengthened sovereignty and self-determination for Indian tribes.

Why Would Indian Tribes Not Want to Ban the Box?

Critics of ban-the-box legislation argue that delayed disclosure of criminal history wastes employer resources if employers ultimately decide to reject a candidate after learning of the candidate’s history. Moreover, employers worry about safety issues or risks of liability subject to a sovereign immunity defense in the event candidates with criminal backgrounds commit crimes in the workplace.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. Title VII expressly excludes federally recognized Indian tribes from the definition of “employer.”[10] Moreover, it expressly permits Indian preference in employment on or near Indian reservations.[11] This is consistent with the finding in Morton v. Mancari,[12] issued by the Supreme Court of the United States noting that being Native American is a political classification, not a racial category.

However, Title VII does apply to private employers of 15 or more employees that are not owned by Indian tribes but are operating on Indian reservations.[13] Furthermore, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII and other federal employment discrimination laws, contends it may have jurisdiction over an enterprise owned by an Indian tribe if that enterprise is not integrated with or controlled by the Indian tribe, and does not perform essential government functions on behalf of the Indian tribe.[14]

EEOC Enforcement Guidance

On April 25, 2012, the EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII,[15] which sets forth information and best practices for employers in considering criminal arrest and conviction records in hiring decisions without running afoul of Title VII—specifically in connection with disparate-treatment and disparate-impact employment discrimination claims on the basis of race and national origin.

Based on statistics showing that African American and Hispanic men are arrested at a higher rate than other races,[16] the EEOC’s Enforcement Guidance warns covered employers about potential disparate-treatment and disparate-impact employment discrimination claims that could arise out of the use of arrest and conviction records in employment decisions. The guidance also explains the difference between such records and encourages employers to conduct individualized assessments before making employment decisions based on criminal records.

In sum, the EEOC’s guidance aims to increase employment opportunities for individuals with arrest and conviction records by cautioning employers against making hiring decisions based on arrest records alone. It also encourages employers to make individualized assessments of a person’s candidacy based on a comparison of the job duties of the position for which the candidate is applying against the nature of the arrest and conviction records.

Conclusion

Native Americans are overrepresented in the criminal legal system.[17] Notwithstanding that Title VII does not apply to Indian tribes (and may not apply to enterprises owned by Indian tribes) and Indian tribes are protected by sovereign immunity, Indian tribes may, nevertheless, wish to voluntarily follow the EEOC’s Enforcement Guidance as a best practice to increase employment opportunities for tribal members and Native Americans more generally.

Moreover, Indian tribes have promulgated their own tribal laws and employer policies prohibiting discrimination in employment on the basis of race.[18] Indian tribes may therefore also wish to voluntarily follow the EEOC’s Enforcement Guidance to reduce claims of discrimination in the workplace, thereby serving to increase employee morale, reduce employee turnover, help the Indian tribe remain a competitive employer in the market, and attract new talent.

 

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[1] For example, under Arizona’s Ban-the-Box Executive Order, which applies to employment by state agencies only, and not to private employers, state agencies are generally not permitted to inquire about criminal history until after the applicant has provided a job application and conducted the initial interview, but the executive order provides the following carve-out: “Notwithstanding anything else in this Order, where a state or federal law prohibits a person from holding a job due to prior criminal conduct, a State Agency may inquire about an applicant’s criminal record during the initial stage of an application process and may disqualify an applicant from further review for this reason.” Executive Order 2017-07, The establishment of Arizona as a Second Chance Employer, (November 6, 2017), https://azgovernor.gov/sites/default/files/boxeo_0.pdf, at 1(D). As but another example, under the federal Fair Chance to Compete for Jobs Act of 2019, discussed later in this article, criminal background checks are required to take place after a conditional offer of employment, but the prohibition “shall not apply with respect to an applicant for a position in the civil service if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.” 5 U.S.C. § 9202(b).

[2] Beth Avery & Han Lu, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project (October 1, 2021), https://www.nelp.org/insights-research/ban-the-box-fair-chance-hiring-state-and-local-guide/.

[3] Id.

[4] 5 U.S.C. § 9201 et seq.; 41 U.S.C. § 4714.

[5] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (“[Indian tribes] have power to make their own substantive law in internal matters . . . and to enforce that law in their own forums.”).

[6] If you are aware of an Indian tribe that has promulgated such a law, please notify the author.

[7] For example, the Employment Application for the Council of Athabascan Tribal Governments asks if the candidate has been convicted of a felony. Employment Application for the Council of Athabascan Tribal Governments, https://www.catg.org/employment-application (last visited May 14, 2025, 8:29 P.M.).

[8] For example, the Confederated Tribes of the Chehalis Reservation requests information about criminal history on the initial job application but explains that conviction of a crime is not an automatic bar to employment, and that the Chehalis Tribe will investigate only those criminal convictions that relate to the applicant’s fitness to perform the job for which the applicant is applying and factors such as the nature and gravity of the crime, length of time that has passed since the conviction, and/or completion of any sentence will be considered. Confederated Tribes of the Chehalis Reservation. Application for Employment and Release for Background/Criminal Investigation (March 2018), https://www.chehalistribe.org/wp-content/uploads/2021/10/Chehalis-Tribe-Application-03-2018.pdf.

[9] For example, the Coquille Indian Tribe conducts a criminal background check after a job offer is made. Coquille Indian Tribe Employment Application, https://www.coquilletribe.org/cit-employment-application/ (last visited May 15, 2025 at 11:37 A.M.). In addition, the Colorado River Indian Tribe does the same. Colorado River Indian Tribes Employment Application, https://www.crit-nsn.gov/crithumanresources/Employment%20Application%20original.pdf) (last visited May 15, 2025 at 11:39 A.M.). Finally, the Navajo Nation conducts criminal background checks only for sensitive positions. The Navajo Nation Personnel Policies Manual (June 3, 2020) https://www.dpm.navajo-nsn.gov/ppm/NNPPM%20Amendment%2006032020%20(002).pdf, at p. 11.

[10] 42 U.S.C. § 2000e(b).

[11] Id. § 2000e-2(i).

[12] 417 U.S. 535, 554 n.24 (1974).

[13] Frequently Asked Questions About Indian Tribes and Tribal Employment Rights Offices,

https://www.eeoc.gov/frequently-asked-questions-about-indian-tribes-and-tribal-employment-rights-offices (last visited May 15, 2025 at 11:41 A.M.) (“Q2. Does the EEOC have jurisdiction over complaints that a private employer engaged in employment discrimination if the private employer operates on a reservation or has a contract with a Tribe?”); EEOC v. Peabody W. Coal Co., 773 F.3d 977 (9th Cir. 2014) (example of the EEOC suing a private employer operating on an Indian reservation on behalf of employees alleging employment discrimination).

[14] Frequently Asked Questions About Indian Tribes and Tribal Employment Rights Offices,

https://www.eeoc.gov/frequently-asked-questions-about-indian-tribes-and-tribal-employment-rights-offices (last visited May 15, 2025 at 11:41 A.M.) (“Q3. Does the EEOC have jurisdiction over complaints of employment discrimination by a business owned by a Tribe?”).

[15] Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, (April 25, 2012), https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions.

[16] Id.

[17] Prison Policy Initiative, Native Incarceration in the U.S., available at https://www.prisonpolicy.org/profiles/native.html#:~:text=In%20the%20United%20States%2C%20Native,rate%20is%20157%20per%20100%2C000 (last visited May 15, 2025 at 11:55 A.M.).

[18] For example, the Tohono O’odham Nation prohibits discrimination in employment by covered employers on the basis of race, color, sex, sexual orientation, gender identity, national origin, age or disability for covered employers. Tohono O’odham Code, Title 13, Chapter 1, Section 1103 (December 14, 2020), available at https://tolc-nsn.org/docs/Title13Ch1.pdf.