This publication is provided only for educational purposes; it should not be relied upon as legal advice. It should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used to resolve disputes or manage risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship.
In June 2022, the City of Atlanta adopted a new ordinance to amend its existing anti-discrimination laws (Chapter 94 of the Atlanta Municipal Code). The updated laws were effective immediately and apply to all private employers with ten or more employees, so employers that missed the update last year will want to work quickly to make sure they are in compliance.
What is the New Legislation?
This new legislation makes it a presumptively unlawful employment practice for an employer to fail or refuse to hire, or to discharge any individual, or otherwise discriminate against any individual with a criminal history. Prior to the 2022 updates, the city’s protected classes were generally aligned to those in traditional equal employment opportunity laws, such as race, religion, gender, age, disability, etc. This extension of the city’s human rights code essentially creates a brand-new protected class for individuals with criminal records.
However, there are some exceptions to this rule. Employers may avoid violating the anti-discrimination provisions of the updated code by only making adverse employment decisions based on criminal history status by showing that the criminal history is related to the position in question. When making this determination, employers must take into consideration the following relevant factors:
1) Whether the applicant committed the offense;
2) the nature and gravity of the offense;
3) the time since the offense; and
4) the nature of the job for which the applicant has applied.
The new ordinance does not specifically limit this rule to apply to decisions made about traditional applicants for employment, so employers will likely want to make the same assessment before making an adverse decision regardless of whether an applicant or a current employee is involved.
Furthermore, it is important to note that the new ordinance explicitly calls for exceptions to allow employers to make adverse employment decisions based on criminal history status when related to positions where certain convictions or violations are a bar to employment in that position under state or federal law, such as positions that involve work with children and positions in law enforcement.
What Does This Mean for Employers?
As HR professionals, it is important to stay informed of these new restrictions and to review and update your company’s hiring policies and procedures accordingly. While considering criminal history when making hiring decisions, prudent employers will want to take steps to avoid accusations of unlawful discrimination by facilitating individual assessments for those with criminal records, complete with careful documentation, prior to making any final decisions about an applicant’s eligibility for employment.
1. Review and update your company’s hiring policies and procedures to ensure compliance with the new restrictions.
2. Stay informed of any updates or changes to the legislation.
3. When considering criminal history when making hiring decisions, ensure that you are not unlawfully discriminating against any individual and that you are considering the specific circumstances of each applicant’s criminal history.
4. Train your HR team about the restrictions and how to comply with them.
5. Consult with legal counsel to ensure compliance with the new legislation and to address any questions or concerns about the hiring process.
The City of Atlanta’s Human Relations Code prohibits unlawful discrimination based on criminal history in the hiring process.
Exceptions may apply if the employer can show that the criminal history is sufficiently related to the job responsibilities.
Employers can still make decisions based on criminal history in accordance with employment requirements under state or federal law.
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