Hunton Employment & Labor Perspectives

Earlier this year, Harris County, Texas, which encompasses a substantial majority of the City of Houston, became the sixth Texas city or county to embrace a “ban the box” policy when it adopted the Fair Chance Policy.

As we have previously posted (see here and here), “ban the box” policies are gaining support around the country, with over 37 states and over 150 cities and counties having adopted some form of a ban the box policy, including several in Texas.  Generally, these policies are designed to ensure that potential employers consider a job candidate’s skills and qualifications first, thereby eliminating any implicit bias or negative implication to his/her application due to a criminal conviction or arrest record.  As the name suggests, these policies typically  eliminate the box (or question) on an employer’s employment application where the applicant must check off whether or not he/she has a criminal record.  

To be clear, ban the box policies do not eliminate an employer’s right or ability to inquire into an applicant’s criminal background, but rather restrict those questions to later in the hiring process.

Ban the Box in Texas

In Texas, Travis County was at the forefront of ban the box initiatives when, in April 2008, the Travis County Commissioner’s Court voted to remove the question regarding an applicant’s criminal background from county job applications.  The City of Austin followed, enacting a similar policy a few months later.  In March 2016, the Austin City Council took things a step further by enacting the State’s first ban the box ordinance applicable to both public and private employers.  Shortly thereafter, San Antonio and Dallas County each followed with their own ordinances, both of which apply only to public employers.

Recent Updates

In June 2021, the City of DeSoto, Texas, enacted its ban the box ordinance – the Fair Chance Hiring Ordinance.  Like the Austin ordinance, DeSoto’s ordinance applies to both public and private employers.

In early 2022, Harris County followed suit by voting to enact the Fair Chance Policy.  Unlike in Austin and DeSoto, where the ban the box ordinances apply to both public and private employers (assuming certain conditions are present), the Fair Chance Policy aligns more closely with Dallas County, Travis County, and San Antonio, Texas, as it applies only to public employers, i.e., it does not apply to private employers. 

Harris County’s Fair Chance Policy will “prohibit departments from considering an applicant’s record of arrest if that arrest did not result in a conviction, or if it did and it was expunged or sealed, or it’s a misdemeanor for which no jail time can be sentenced,” said Harris County Attorney Christian Menefee – who proposed the program.  Menefee further noted that the Fair Chance Policy “will allow departments to conduct a criminal background check only after a conditional offer of employment [is made]…The policy will prohibit blanket disqualification of applicants solely because they have a conviction…Instead, what it’s going to call for is an individualized assessment of various factors, including what was the nature of the offense.  What is the position that the applicant is applying for?”

Currently, the Fair Chance Policy applies only to departments led by county appointees, not elected officials (though elected officials are free to adopt the Fair Chance Policy in his/her office).

It is clear that ban the box policies are gaining popularity throughout Texas and the United States, and private businesses should be alert for similar bills that could be introduced that impact the private sector.