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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