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Grand Rapids, MI Enacts “Ban the Box”- Style Restrictions

We have previously reported on multiple recently enacted Ban the Box laws, both at the state and municipal levels. As you may know, Ban the Box laws often feature restrictions that prevent employers from asking about a job candidate’s criminal history early in the hiring process. The city of Grand Rapids, Michigan has recently joined the “movement,” with their own Ban the Box-style restrictions, which became effective on December 1, 2019. And the city did this despite a 2018 Michigan state law that restricts counties and cities in Michigan from passing Ban the Box ordinances.

According to state law:

“A local governmental body shall not adopt, enforce, or administer an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment or during the interview process from an employee or a potential employee. This section does not prohibit an ordinance, local policy, or local resolution requiring a criminal background check for an employee or potential employee in connection with the receipt of a license or permit from a local governmental body.” (Full text available here).

How did Grand Rapids circumvent the Michigan state law? By placing their Ban the Box restrictions in a new “Human Rights Ordinance”. The ordinances states:

    • The opportunity to obtain employment and advancement opportunities without discrimination on the basis of actual or perceived membership in a protected class as identified in Section 9.955 of this Chapter is hereby recognized and declared to be a civil right. No person shall discriminate against a current or prospective employee with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, unless such act is based on a bona fide occupational qualification.
    • Bona fide occupational qualifications include: (b) Conviction Record. History of criminal conviction may be considered in employment decisions, although arrest with no conviction may not be considered. An outright ban on prospective employees with a criminal background is prohibited. Employers must carefully consider, on a case-by-case basis, the nature and severity of the crime, the age of the individual at the time of the crime, whether there have been repeat offenses, whether the individual maintained a good employment history before or after the conviction, evidence of rehabilitation efforts, and whether the crime for which the individual was convicted may pose a demonstrable risk to the health, safety or welfare of other employees or persons or to property.

    In addition to employers, individuals screening potential tenants should be mindful of Grand Rapids’ Human Rights Ordinance, as well. The ordinance also states:

      • The opportunity to purchase, lease, rent, sell, use, convey, and finance housing without discrimination on the basis of actual or perceived membership in a protected class as identified in Section 9.955 of this Chapter is hereby recognized and declared to be a civil right.
      • In addition to the exemptions contained in Chapter 160 of the City Code, the following considerations may result in exceptions to discriminatory housing practices: (b) Conviction Record. History of criminal conviction may be considered in housing decisions, although arrest with no conviction may not be considered. An outright ban on prospective tenants with a criminal background is prohibited. Landlords must carefully consider, on a case-by-case basis, the nature and severity of the crime, the age of the individual at the time of the crime, whether there have been repeat offenses, whether the individual maintained a good tenant history before or after the conviction, evidence of rehabilitation efforts, and whether the crime for which the individual was convicted may pose a demonstrable risk to the health, safety or welfare of other residents or persons (which would include manufacturing or distributing illegal drugs) or to property.

      The full text of the Human Rights Ordinance can be found here (employment restrictions can be found in Section 9.959 and housing restrictions can be found in Section 9.958 of Chapter 176 of the Grand Rapids, Michigan Code of Ordinances).

      Because the Grand Rapids Ban the Box-style restrictions are tucked into an anti-discrimination law, instead of a traditional Ban the Box law, the restrictions on using criminal history information can be easy to overlook. You may want to carefully review this ordinance with your legal advisors to determine whether these restrictions apply to you.

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