Ban the Box Laws in Delaware: Criminal History in Hiring

Federal law does not establish a uniform ban-the-box requirement. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), which prohibits discrimination based on race, color, religion, sex, or national origin. The EEOC has issued guidance stating that employers cannot use blanket policies excluding all individuals with criminal convictions, as this may have a disparate impact on protected classes, particularly African American and Hispanic applicants. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, requires employers to follow proper procedures before taking adverse action based on background check information, including providing notice and an opportunity to dispute findings. The FCRA does not prohibit asking about criminal history, but it requires accuracy and fairness in how that information is used. Federal contractors covered by 41 U.S.C. § 4712 have additional obligations to conduct ban-the-box inquiries responsibly. Enforcement occurs through the EEOC and the Federal Trade Commission (FTC).

Federally, there is no specific timeline restriction on when criminal history can be asked—it depends on whether a blanket exclusion policy violates the FCRA's accuracy standards or Title VII's anti-discrimination provisions. Federal law establishes a baseline that employers cannot use conviction information as a per se disqualifier without individualized assessment.

Delaware's ban-the-box law is codified in Delaware Code Title 11, Section 4413, and applies to employers with 15 or more employees within the state. This state law is more protective than the federal baseline because it creates an affirmative timing restriction: employers are completely prohibited from asking about criminal history—including arrests, charges, or convictions—on job applications or during initial interviews or conversations.

Under Delaware law, criminal history inquiries can only occur after the employer has made a conditional offer of employment. At that point, employers may ask about convictions, but cannot ask about arrests or charges that did not result in conviction. Additionally, Delaware law provides absolute protection for sealed, expunged, or dismissed charges—these can never be inquired about, at any stage of the hiring process, regardless of whether a conditional offer has been made.

The law applies to all employers with 15 or more employees in Delaware. Smaller employers (under 15 employees) are not covered by the state statute, though they remain subject to federal anti-discrimination law. Delaware's approach goes further than federal law because it does not rely on disparate impact or discrimination theory—it simply prohibits the inquiry entirely until after a conditional offer, eliminating the employer's ability to make early screening decisions based on criminal history.

Remedies under Delaware law include civil penalties and compensatory damages. An applicant who believes an employer violated the law can pursue a civil action. Additionally, Delaware Code Title 19, Section 713 requires that when an employer does inquire about criminal history after a conditional offer, they must consider the nature of the offense, the time elapsed since conviction, and the nature of the job. If an employer withdraws the conditional offer based on criminal history without this individualized assessment, the applicant may have additional grounds for challenge.

Delaware's law is stricter than federal EEOC guidance because it does not permit the employer to make any criminal history inquiry early in the hiring process—there is no federal statutory prohibition, only guidance on how to use such information fairly.

Delaware's ban-the-box law contains limited exceptions that employers and applicants should understand. First, the law only applies to employers with 15 or more employees; employers with fewer than 15 employees are exempt from the timing restriction, though they remain subject to federal anti-discrimination law.

Second, the law does not prevent employers from conducting background checks—it only restricts when they can directly ask the applicant about criminal history. An employer can conduct a third-party background check at any time, as long as the employer complies with the FCRA by providing notice and an opportunity to dispute inaccurate findings. However, the employer cannot use information from that background check as a basis for rejection until after a conditional offer has been made.

Third, certain positions may be exempt or subject to different standards. Federal law (such as background check requirements for positions in child care, elder care, or positions involving access to sensitive information) may override or supplement state ban-the-box protections. Additionally, employers in regulated industries (financial services, gaming, certain healthcare roles) may have specific statutory obligations to inquire about criminal history regardless of state ban-the-box law.

Fourth, the individualized assessment requirement means that an employer can withdraw a conditional offer based on criminal history if the employer properly considers the nature and severity of the offense, the time elapsed, and the job requirements. This is not an exception that permits blanket exclusion, but rather a framework that permits case-by-case decisions.

Fifth, sealed, expunged, or dismissed charges are never subject to inquiry—the applicant has a legal right to state that they have no criminal history when these charges are concerned. An employer cannot violate the law by asking about these, and an applicant can refuse to disclose them.

**Step 1: Document Everything.** Keep written records of all communications during your job application process. Save copies of job applications, emails, interview feedback forms, and notes from interviews. Document the exact date and time of each interview or communication. If an interviewer or hiring manager asked you about criminal history during an initial interview or on a job application, write down the date, who asked, exactly what was asked, and in what context. Photograph or screenshot online applications if you notice a criminal history question appears before any conditional offer is made. Keep copies of any conditional offer letter (if one was provided) with its date clearly marked.

**Step 2: Understand the Internal Complaint Process.** Before filing with an external agency, consider whether the employer has an internal complaint or human resources process. Contact the employer's HR department in writing (email is best for documentation) and describe the violation—state clearly that you were asked about criminal history before a conditional offer was made, in violation of Delaware Code Title 11, Section 4413. Request a written response. Internal complaints do not waive your right to file with a state or federal agency, but they create a paper trail and may result in faster resolution if the employer acknowledges the error. Document the date you submitted the internal complaint and any response received.

**Step 3: File with the Appropriate Agency.** Delaware does not have a dedicated ban-the-box enforcement agency separate from its general employment law authority. You have two primary options: (1) File a complaint with the Delaware Department of Labor, Division of Industrial Relations, at https://dnrec.delaware.gov/air/ or call (302) 761-8000. Include the employer name, the date of the violation, details of how the question was asked, and what impact it had on your hiring (rejection, withdrawal of offer, etc.). The complaint should reference Delaware Code Title 11, Section 4413. (2) Consult with a private attorney to file a civil action in Delaware state court or federal court (if diversity jurisdiction applies). The deadline to file is typically within three years of the violation under Delaware's general civil statute of limitations, though consulting an attorney early is advisable. No federal agency directly enforces state ban-the-box law, but if the violation also involved discrimination based on race, color, religion, sex, or national origin, you can file with the EEOC at https://www.eeoc.gov/filing-charge-discrimination or call 1-800-669-4000. The EEOC deadline is 180 days from the violation in Delaware (non-deferral state), though it is better to file within 60 days to ensure timely filing.

**Step 4: Expect the Investigation Process.** If you file with the Delaware Department of Labor, expect an initial intake review within 2-4 weeks. The department will likely request additional documentation from you and may contact the employer for a response. The investigation typically takes 60-90 days. You should be prepared to provide: a detailed timeline of your application and interview process, copies of all communications, witness names and contact information if others were present during the violation, the job position you applied for, and any evidence showing you were rejected or treated differently because of the question. If the department finds merit, it may issue a Notice of Violation and attempt conciliation between you and the employer. If conciliation fails, the matter may proceed to an administrative hearing. If you file a civil action through an attorney, discovery will take several months, and the case may settle before trial or proceed to litigation.

**Step 5: Consult an Attorney.** Contact an employment law attorney in Delaware as soon as possible—ideally before filing any complaint. An attorney can evaluate whether your specific situation violates the law, advise whether you have additional claims (such as discrimination), and represent you in negotiations or litigation. Many employment attorneys work on contingency or reduced-fee arrangements for wage and rights violations. Organizations like the Delaware Bar Association (https://www.delaware.bar.org/) can provide referrals. An attorney is particularly important if the violation also affected your hiring outcome, if the employer is large, or if you believe the question was discriminatory on a protected basis.