Ban the Box Laws in Georgia: Criminal History in Hiring

Federal law does not impose a blanket ban on criminal history inquiries, but employers are constrained by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The EEOC enforces guidelines (EEOC Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, revised 2021) that prohibit using criminal convictions in a way that has a disparate impact on protected classes (race, color, religion, sex, national origin) or if the conviction is not job-related and consistent with business necessity. The Fair Credit Reporting Act, 15 U.S.C. § 1681, requires employers using third-party background check companies to provide candidates notice and opportunity to dispute inaccurate information.

Under the FCRA, employers must obtain written consent before obtaining a background report and must provide a copy of the report and disclosure of their intent to take adverse action before denying employment based on the report. The Equal Employment Opportunity Commission (EEOC) investigates federal Title VII violations. Remedies under federal law include back pay, front pay, compensatory damages for emotional distress, and punitive damages in cases of intentional discrimination.

Georgia does not have a ban-the-box law or any statute restricting an employer's ability to inquire about criminal history during the hiring process. Georgia Code § 42-8-60 allows employers to consider the entire criminal history of applicants without legal restriction regarding timing or scope of inquiry. This means Georgia employers are not required to delay criminal background questions until a conditional job offer is made, and they may ask about arrests, pending charges, and convictions on initial job applications.

Georgia law is weaker than the federal EEOC guidance framework in that it imposes no affirmative obligation on employers to evaluate criminal records on a case-by-case basis or to consider job-relatedness and business necessity before disqualifying applicants. However, Georgia employers are still subject to federal Title VII disparate impact analysis when criminal history policies have a disproportionate effect on protected classes. Georgia does not recognize a separate state employment discrimination agency; discrimination claims are enforced through the federal EEOC and Georgia state courts under federal law.

Georgia employers are covered by the Fair Credit Reporting Act if they use third-party background check agencies, meaning they must comply with FCRA notice and disclosure requirements regardless of state law. Unlike states with ban-the-box statutes, Georgia provides no state-level protection for candidates with criminal records, and employers face no penalty under Georgia law for inquiring about criminal history at any stage of hiring.

Georgia law contains no exceptions to employer authority to inquire about criminal history. However, federal Title VII disparate impact doctrine creates a de facto limitation: if an employer's blanket criminal history policy excludes a protected class at a significantly higher rate than other groups, the employer must demonstrate job-relatedness and business necessity.

Under the EEOC's guidance, certain convictions may be excluded from consideration if sufficiently old or unrelated to the job (e.g., hiring a cashier and considering a 20-year-old shoplifting conviction may fail the business necessity test). Additionally, arrests without conviction may not legally be used as a basis for automatic disqualification under federal law, though Georgia law does not prohibit inquiry.

The Fair Credit Reporting Act creates procedural exceptions: employers cannot use conviction information obtained through a consumer report unless they follow FCRA notice and dispute procedures. Georgia's at-will employment doctrine means employers need not provide any reason for rejecting an applicant, including criminal history, but if the reason is pretextual for racial or other protected-class discrimination, federal Title VII applies. Public sector employers in Georgia face additional restrictions under O.C.G.A. § 34-9-2, which limits inquiries about felony convictions for certain state employment.

Step 1: Document the interaction. If you are a job applicant rejected based on criminal history you believe was unlawful, keep copies of the job posting, application materials you submitted, any communications with the employer about your criminal record, and correspondence explaining the rejection. If the employer used a third-party background check, request your background report under FCRA rights to verify accuracy of the information reported.

Step 2: Determine whether federal Title VII disparate impact applies. If you are a member of a protected class (race, color, religion, sex, national origin) and the employer's criminal history policy appears to screen out applicants from your class at a disproportionately high rate, you may have a disparate impact claim. File an internal complaint with HR if the employer has an internal grievance procedure, though this is not required and does not extend filing deadlines. Document the date you file any internal complaint.

Step 3: File a charge with the EEOC. You have 180 days (or 300 days if Georgia has a worksharing agreement, which it does as of 2024) from the discriminatory act to file. File online at www.eeoc.gov/filing-charge-discrimination or by mail with the EEOC Atlanta District Office, 100 Alabama Street, SW, Atlanta, GA 30303, phone (404) 562-6800. Provide your name, address, employer name and address, date of the alleged discrimination, description of what happened, and whether it involved race, color, religion, sex, national origin, or other Title VII protected status.

Step 4: EEOC investigation process. After you file, the EEOC will send a notice of charge to the employer, who has 10 business days to submit a response. The EEOC investigator will contact you and the employer to gather evidence, which typically takes 60 to 180 days. If the EEOC finds reasonable cause that discrimination occurred, it will issue a Right-to-Sue letter. If the EEOC issues a Notice of Right to Sue, you then have 90 days to file a lawsuit in Georgia state or federal court.

Step 5: Consult an employment attorney. Contact an attorney specializing in employment discrimination as soon as you recognize the rejection may have involved illegal discrimination. An attorney can help determine whether you have a viable disparate impact claim under Title VII, ensure you meet filing deadlines, and represent you in EEOC proceedings and litigation. Many employment attorneys work on contingency, collecting fees only if you win. If you believe the background report itself contained inaccurate information, you may also have a FCRA claim against the background check company, which carries statutory damages of $100 to $1,000 per violation.