Iowa City’s ‘Ban the Box’ Ordinance Struck Down by Top State Court

(CN) --- An Iowa city’s ordinance that banned prospective employers from inquiring about applicants’ criminal records violates state law, the Iowa Supreme Court held Friday. But the court preserved one piece of the ordinance that requires employers to postpone criminal history inquiries until after making a conditional job offer.

Inspired by the “ban the box” movement taking aim at the criminal record inquiry on an employment application -- the “box” asking if the applicant has been charged or convicted of a crime -- the Waterloo City Council in 2019 passed the ordinance that prohibited prospective employers from denying jobs to applicants based on their criminal history.

In a decision handed down Friday, the Iowa Supreme Court said the ordinance -- with one exception -- violates a 2017 state law that bars cities from enacting ordinances that conflict with or exceed the requirements of state or federal law relating to terms or conditions of employment. State law in Iowa does not prohibit practices limited by the Waterloo ordinance.

However, the court upheld a section of the ordinance that requires employers to delay criminal history inquiries until making a conditional offer of employment.

Waterloo Mayor Quentin Hart said in an interview with Courthouse News on Friday the city is pleased with that part of the decision, because it allows people to still have interviews with background checks “on the back end of the process” so they can at least get their foot in the door.

“We have people in our community who have made mistakes,” Hart said. “In certain places, they can’t even get an interview. So our whole intent was not to be divisive. We wanted to just give them a fair chance.”

Writing for the state high court's majority, Justice Edward Mansfield said, “We conclude that the ordinance is preempted [by state statute] to the extent it purports to regulate whether an employer can consider an employee’s criminal history at all — i.e., to the extent it regulates a term and condition of employment. However, it is not preempted where it only regulates timing, because that is not a term or condition of employment.”

Mansfield’s opinion was joined by all members of the court except Justice Christopher McDonald, who wrote separately to say he agreed with the court’s judgment but dissented on an issue discussed by the majority that he said was not properly raised by the parties on appeal. One member of the court did not participate in the case.

In addition to banning the box on employment applications, Waterloo’s ordinance would have prohibited employers from making “any adverse hiring decision” based on the applicant’s arrest or criminal history that has not resulted in a conviction, criminal records or convictions that have been expunged or legally nullified, or criminal records or convictions unless they have a legitimate business reason to do so.

Criminal history checks most directly impact members of minority groups. Waterloo has the highest percentage of African Americans of any city in Iowa, and Blacks make up 40% to 60% of inmates at the Black Hawk County Jail at any given time.

The Iowa Association of Business and Industry, or ABI, the state’s largest statewide business organization with more than 1,500 member companies representing 330,000 workers, sued the city of Waterloo and its Commission on Human Rights, arguing that the city’s ordinance runs afoul of the 2017 state law.

The association said in a statement Friday that it was pleased with the court’s decision, with one exception.

“ABI and its members support second chances. In fact, at a time when employers are struggling to find employees, no Iowa employers is looking to turn away qualified applications. But the consideration of an applicant’s criminal history is something that each employer should be free to consider. It’s not something that should be controlled by the government,” the association said.  

“To that end, ABI is pleased the Supreme Court determined that local governments cannot exceed state law when it comes to what employers consider when making hiring decisions," it added. "But we respectfully disagree with the majority’s ruling that an employment application is not a condition of employment and that employers can’t ask about criminal history on an application. ABI looks forward to working with members of the Iowa Legislature in 2022 to address this decision.”

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