Ban the Box Laws in Indiana: Criminal History in Hiring

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., establishes federal baseline protections for criminal record inquiries. Under the FCRA, employers using third-party consumer reporting agencies (background check companies) must comply with accuracy and disclosure requirements. The Federal Trade Commission and Consumer Financial Protection Bureau enforce FCRA compliance.

Executive Order 11246, enforced by the Office of Federal Contract Compliance Programs (OFCCP), applies to federal contractors and subcontractors. It requires contractors to consider rehabilitation, time elapsed, and nature of the offense before rejecting applicants based on criminal records. The EEOC has also issued guidance (2012) stating that blanket exclusions of individuals with criminal histories may violate Title VII if they have a disparate impact on protected classes.

Under the FCRA, before obtaining a background report containing criminal history, employers must provide written disclosure and obtain written authorization from the applicant. If the employer takes adverse action based on criminal history information, the applicant must receive a copy of the report and opportunity to dispute it. However, the FCRA does not prohibit employers from asking about criminal history on job applications or during interviews—it only regulates how third-party reports are obtained and used.

Indiana has no statewide ban the box law limiting when private employers can ask about criminal history during the hiring process. Indiana Code § 34-28-2-1 et seq. governs expungement of criminal records, allowing certain convictions to be expunged or sealed, but this does not restrict employer inquiries about non-expunged records. Unlike California, New York, and many other states that prohibit criminal history questions until later in hiring, Indiana imposes no timing restrictions on private employers.

Indiana is weaker than federal law in some respects: the state provides no statewide protection preventing employers from asking about criminal history at the application stage or before interview. However, applicants whose records have been expunged may legally answer "no" to questions about criminal convictions, since expunged records are treated as if they did not occur under Indiana law.

Private employers in Indiana with any number of employees can ask about criminal history without restriction. Federal contractors operating in Indiana must comply with Executive Order 11246 and FCRA requirements, which impose a multi-factor analysis before rejecting applicants based on criminal records. This creates a two-tiered system: private employers have broad discretion, while federal contractors face federal limitations.

Indianapolis and a few other Indiana municipalities have enacted local ban the box ordinances. Indianapolis prohibits the city from asking about criminal history until conditional offer of employment stage. These local laws apply only to city government hiring and private employers with city contracts, not private employers generally. Applicants should check local municipal code for their jurisdiction.

Indiana law contains significant exceptions and gaps compared to states with ban the box laws. First, there is no state-level protection: private employers can ask about criminal history at any hiring stage. Second, applicants cannot refuse to answer criminal history questions unless their record has been expunged under Indiana Code § 34-28-2-1. If an expunged record is incorrectly reported by a background check company, the applicant may have an FCRA claim, but Indiana state law does not provide a private cause of action for employers asking about expunged records.

Third, at-will employment applies in Indiana, meaning employers can reject applicants based on criminal history for reasons other than disparate impact discrimination. Indiana does not require individualized assessment or consideration of rehabilitation, as federal contractors must do. Fourth, certain employers are exempt: law enforcement agencies, correctional facilities, and childcare licensing may have different standards under state or federal law.

Fifth, the FCRA's disparate impact provisions apply only when a third-party background check company is used—not when employers conduct their own criminal background research. Private background research is not regulated as a "consumer report" under FCRA. Sixth, job-relatedness is not required under Indiana state law, unlike some states. An employer can reject an applicant for any conviction, no matter how old or unrelated to the job, absent federal contractor protections or Title VII disparate impact claims.

Step 1—Document Everything: Keep records of all job postings, applications, interview notes, and any criminal history questions asked. If an employer asks about criminal history, take notes of the exact question, when it was asked (initial application, after screening, after interview offer), and whether you disclosed information. Save screenshots of online applications and any written communication. If you were denied employment and later learn it was due to criminal history, document the timeline and any statements made by the employer.

Step 2—Determine if Local Ban the Box Applies: Check whether your location is covered by a local ban the box ordinance. Indianapolis and a few other Indiana cities have local protections. Go to your city or county government website and search "criminal history hiring" or "ban the box." If your employer is a government contractor in a locality with a ban the box law, and the employer asked about criminal history before conditional offer, note this. If your record is expunged, you have stronger rights to object to criminal history questions or background check reports.

Step 3—File an FCRA Complaint if Third-Party Report Was Used: If the employer obtained a background report from a third-party agency (e.g., Sterling Check, GoodHire, Checkr), and the report contained inaccurate or outdated criminal information, contact the background check company first and request a dispute of the report. The company must investigate and correct inaccurate information within 30 days. Simultaneously, file a complaint with the Consumer Financial Protection Bureau (CFPB) at consumerfinance.gov or call 1-855-411-2372. Include the background check company name, what information was inaccurate, and when it was reported. The CFPB investigates FCRA violations.

Step 4—Contact the EEOC if Disparate Impact Is Suspected: If you believe the criminal history question or policy was applied in a way that discriminated based on race, color, national origin, religion, sex, age, disability, or genetic information, file an EEOC charge. Contact the EEOC Indianapolis District Office at 317-226-7212 or visit eeoc.gov. File within 180 days of the alleged violation (Indiana is not an EEOC deferral state, so the federal 180-day deadline applies). Describe how the criminal history policy or question affected you and whether it had a disparate impact on your protected class.

Step 5—Consult an Employment Attorney: If the employer violated a local ban the box ordinance (if applicable), mishandled a background report, or discriminated in applying criminal history screening, consult an Indiana employment law attorney. Many offer free consultations. An attorney can evaluate whether you have claims under the FCRA (against the background check company), Title VII of the Civil Rights Act (against the employer if disparate impact), or local ban the box ordinances. Bring all documentation: job posting, application, interview notes, any written rejection reason, the background report if you obtained a copy, and timeline of events.