Ban the Box Laws in Arizona: Criminal History in Hiring

Federal law does not ban the box, but the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance in 2012 clarifying that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) applies to employer use of arrest and conviction records. Under federal law, employers cannot use criminal history as an automatic bar to employment (known as a blanket policy) if doing so has a disparate impact on a protected class—such as race, color, national origin, religion, or sex—without proving business necessity and showing that the exclusion is job-related and consistent with business necessity.

The EEOC guidance recommends a three-part test: (1) the nature and gravity of the offense, (2) the time elapsed since the conviction or release, and (3) the nature of the job held or sought. Employers must conduct individualized assessments rather than automatic exclusions. The EEOC itself has enforcement authority and can investigate complaints alleging discriminatory use of criminal history in hiring.

Arrest records alone cannot generally be used as the basis for denying employment, as arrest does not establish guilt. However, conviction records may be considered if there is a genuine business necessity. Federal law does not require employers to delay criminal history inquiries until after a conditional job offer—that timing requirement comes from state-level ban the box laws, which Arizona does not have.

Arizona does not have a comprehensive ban the box statute that requires employers to delay criminal record inquiries until after a conditional offer of employment. Unlike states such as California, Illinois, and New York, Arizona does not impose a statewide waiting period before employers can ask applicants about criminal history.

However, Arizona Revised Statutes § 13-904 provides important protections. This statute governs consideration of prior convictions in employment decisions and requires that if a criminal history is considered, the employer must conduct an individualized assessment. The statute does not categorically bar consideration of convictions but establishes that employers must look at factors including the nature and gravity of the offense, the time elapsed, the relevance to the job, and whether rehabilitation has occurred.

Arizona law distinguishes between public and private employers. Public employers in Arizona—including state agencies, counties, and cities—are subject to greater scrutiny under Arizona constitutional law (Article 2, Section 26) and must follow due process principles when denying employment based on criminal records. Public employers often face more stringent requirements than private employers and typically cannot use blanket exclusions.

Private employers in Arizona face fewer statutory restrictions and are primarily governed by federal EEOC guidance and Title VII compliance obligations. Private employers may ask about criminal history during the initial application if they do so in a manner that does not have a disparate impact on protected classes. Arizona state law does not require individualized assessment before the hiring decision is made; rather, § 13-904 requires assessment if criminal history is actually considered in the decision.

Unlike ban the box states, Arizona employers are not prohibited from asking about criminal history on the initial application form. However, best practice and federal compliance require that any use of criminal history information be applied consistently and in a manner that does not discriminate based on protected characteristics.

Arizona law provides several important exceptions and limitations to criminal history protections. First, Arizona has no formal ban the box law, so employers are not prohibited from asking about criminal history during initial application—this is a major exception compared to states with ban the box statutes.

Second, Arizona Revised Statutes § 13-904 permits consideration of prior convictions in employment decisions, provided the employer conducts individualized assessment. The statute itself is not a blanket protection but rather a requirement of process. Employers may exclude applicants with certain criminal histories if they can demonstrate legitimate business reasons and have applied the policy consistently.

Third, certain convictions may be more easily excluded from employment consideration. For example, convictions directly related to job duties (such as hiring someone with a recent theft conviction for a position handling cash) may be excluded more readily. Conversely, dated convictions or minor offenses must be given greater weight in the individualized assessment.

Fourth, arrest records that did not result in conviction are generally not admissible in Arizona employment decisions, following federal EEOC guidance. However, pending charges may be considered in limited circumstances.

Fifth, expunged or dismissed convictions are treated differently. Once a conviction is set aside under Arizona law, the employer must treat the applicant as if the conviction never occurred—though the applicant may still be asked about the prior record depending on the context and the job.

Sixth, bonded positions and certain regulated professions (such as security, childcare, and financial services) have statutory exceptions under state and federal law. Employers in these sectors may have greater discretion to exclude applicants with criminal histories.

Seventh, public employers face heightened scrutiny under the Arizona Constitution and may not use blanket policies excluding all applicants with criminal histories. Public employers must document individualized assessment more carefully than private employers.

Eighth, federal compliance with Title VII is mandatory even without state ban the box law. If criminal history questions have a disparate impact on protected classes, the employer must prove business necessity. This federal requirement operates as a de facto limitation on when criminal history can be considered, even though Arizona state law does not formally restrict timing of inquiries.

Step 1: Document Everything Related to the Hiring Decision — Keep copies of all job applications, the specific criminal history questions asked, the applicant's responses, interview notes, emails discussing the candidate, any background check reports, and the final hiring decision. Document the timing: when criminal history was first inquired about (application stage, interview, after conditional offer), what specific questions were asked, and who made the employment decision. If you believe you were discriminated against based on race, national origin, or other protected characteristic in connection with the criminal record inquiry, note dates of conversations and any statements made by hiring personnel. Save all communications with the employer including rejection letters or explanations given for non-hire.

Step 2: File an Internal Complaint (If Applicable) — Most Arizona employers do not have formal complaint procedures for hiring discrimination, but if the employer has an HR department or equal employment opportunity (EEO) policy, submit a written complaint describing: (1) the position applied for and date of application, (2) the criminal history question asked and when it was asked in the process, (3) whether you were not hired and believed it was because of the criminal history inquiry or decision, (4) whether you believe the decision was made in a discriminatory manner (e.g., based on race or other protected status), (5) the name of the hiring manager and any witnesses, and (6) what resolution you seek. Request a written acknowledgment of receipt. This step creates an internal record and may prompt the employer to review its procedures, though Arizona employers are not legally required to have such a process.

Step 3: File an EEOC Charge of Discrimination — Because Arizona is a deferral state, you must file with the Arizona Civil Rights Division (ACRD), which will also forward your complaint to the federal EEOC. The deadline to file is 300 days from the date of the alleged discriminatory conduct (not hiring or rescission of offer). You can file in person at the Arizona Civil Rights Division office in Phoenix or by mail. Visit the ACRD website at azag.gov/civil-rights or call (602) 542-5263. You will need to provide: (1) your name, address, and phone number, (2) the employer's name and address, (3) a description of what happened (the criminal history question, when it was asked, whether you were not hired, and why you believe it was discrimination), (4) whether the decision affected you based on race, color, national origin, religion, sex, disability, or other protected characteristic, (5) the date of the alleged discrimination, (6) whether you filed a charge with another agency, and (7) copies of supporting documents. There is no filing fee. You do not need an attorney to file, but many applicants consult an employment attorney before or during the EEOC process.

Step 4: EEOC/ACRD Investigation Process — After you file, the ACRD and EEOC will assign an investigator to your case. You will receive written acknowledgment of your charge. The investigation typically takes 60–180 days but can extend longer. The investigator will request that you provide additional details about your claim, including a detailed description of events, dates, names of witnesses, and any documentary evidence. The investigator will also contact the employer and request information including hiring records, the job posting, applications, notes on all candidates considered, hiring criteria, interview scores or assessments, background check reports, communication about the candidate, and the hiring decision rationale. You may be asked for an interview, either in person or by phone. The employer will also be asked to respond to your allegations. After investigation, the EEOC will issue either a "Determination of Probable Cause" (if evidence suggests discrimination) or a "No Probable Cause" finding. If probable cause is found, the agency may attempt conciliation (settlement negotiation) between you and the employer. If conciliation fails or no probable cause is found, you will receive a "Right to Sue" letter, allowing you to file a civil lawsuit in federal court within 90 days.

Step 5: Consult an Employment Law Attorney — If you file an EEOC charge involving criminal history discrimination, consult an Arizona employment law attorney experienced in discrimination and hiring practice. An attorney can: (1) review whether your case involves unlawful disparate impact or disparate treatment, (2) help gather evidence of discriminatory intent or pattern, (3) advise whether the employer violated federal Title VII or Arizona law, (4) negotiate with the employer or EEOC during investigation, (5) prepare your Right to Sue litigation if necessary, and (6) pursue remedies including back pay, front pay, attorney fees, and damages. Initial consultations are often free or low-cost. If the EEOC issues a Right to Sue letter, you have 90 days to file a federal lawsuit in the U.S. District Court for the District of Arizona. Choose an attorney licensed in Arizona who specializes in employment discrimination, not general civil litigation.