Ban the Box Laws in South Carolina: Criminal History in Hiring

Under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., all employers (including those in South Carolina) must comply with strict standards when obtaining and using background checks that include criminal history. The EEOC has issued enforcement guidance establishing that employers cannot have blanket policies excluding all individuals with conviction records, as this may constitute disparate impact discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Employers must conduct individualized assessment of convictions, considering factors such as the nature and gravity of the offense, the time elapsed since conviction, the job duties, and evidence of rehabilitation.

Federal contractors are subject to additional restrictions under Executive Order 13635 (issued in 2014). This executive order requires federal contractors to delay criminal history questions until later in the hiring process—specifically, the contractor must not inquire about criminal history on initial applications or during initial phone or in-person interviews. The contractor must first determine if the candidate is otherwise qualified and only then inquire about criminal history. Federal contractors must also provide individualized assessment before making an adverse decision based on conviction history.

The EEOC enforces these standards through the Civil Rights Act and can bring charges for disparate impact discrimination. Remedies under federal law include back pay, front pay, compensatory damages, and in some cases punitive damages up to $300,000 for intentional discrimination. The statute of limitations for filing an EEOC charge is 180 days in non-deferral states or 300 days in deferral states.

South Carolina has no statewide ban the box law. Unlike states such as California, New York, and Massachusetts, South Carolina has not enacted legislation restricting when employers may inquire about criminal history during the hiring process. This means private employers in South Carolina are generally free to ask about criminal history on job applications, during initial interviews, or at any other stage of the hiring process, subject only to federal law constraints.

However, this does not mean employers have unlimited discretion. All employers in South Carolina—like all employers nationally—must comply with federal law, including the EEOC's disparate impact theory under Title VII. The EEOC guidance on convictions applies equally in South Carolina. Additionally, South Carolina employers must comply with the Fair Credit Reporting Act when conducting background checks that reveal criminal history. If an employer intends to deny employment based on criminal history, the FCRA requires the employer to provide the applicant with a pre-adverse action disclosure (the background report and a copy of the applicant's rights under the FCRA) and allow the applicant time to dispute inaccuracies before making a final decision.

South Carolina Code of Laws Title 34 governs employment relationships but contains no specific ban the box provisions. South Carolina does not recognize broader protections for applicants with criminal histories beyond what federal law provides. However, some South Carolina municipalities have adopted local ban the box ordinances. For example, the City of Charleston has implemented a ban the box policy for city contractors and businesses receiving city incentives, though the scope and enforcement mechanisms vary. Employers should verify whether their location is subject to any local ordinances.

Federal contractors operating in South Carolina must comply with Executive Order 13635. This applies to contractors holding contracts with the federal government, including contracts with the Department of Defense, General Services Administration, and other federal agencies. These contractors cannot inquire about criminal history on initial applications or in initial interviews and must use individualized assessment before denying employment based on conviction history. The difference between South Carolina private employers and federal contractors is significant: federal contractors face earlier compliance burdens and more structured procedural requirements.

The absence of a statewide ban the box law in South Carolina creates significant exceptions to what employers must do. Private employers in South Carolina are not legally prohibited from asking criminal history questions on initial job applications, during phone screens, or in first interviews. They do not need to wait until a candidate is otherwise qualified to inquire about convictions. This is a major exception compared to states with ban the box laws, where such early inquiries are illegal.

However, several important exceptions and limitations apply even in South Carolina. First, employers cannot use criminal history inquiries in a way that has a disparate impact on protected classes under Title VII. For example, if an employer's criminal history policy disproportionately excludes applicants based on race (African American men are convicted at higher rates nationally), the EEOC may challenge this as discrimination even if the policy applies equally to all races. The employer must be prepared to show a legitimate business reason and that no less-discriminatory alternative exists.

Second, certain employers are statutorily prohibited from hiring individuals with specific convictions. For example, schools, childcare facilities, and healthcare providers are restricted from hiring individuals convicted of crimes against children or certain sexual offenses. These restrictions override any ban the box considerations.

Third, the Fair Credit Reporting Act requires accuracy and fairness procedures even when employers legally inquire about criminal history. If the background report contains errors (such as a conviction that was expunged or reversed), the employer must allow the applicant to dispute the information. Additionally, if criminal history will be used to deny employment, the employer must provide a pre-adverse action disclosure and wait for the applicant's response before finalizing the decision.

Fourth, federal contractors operating in South Carolina face the ban the box exception built into Executive Order 13635. They cannot ask criminal history questions until later stages and must use individualized assessment.

Fifth, some South Carolina municipalities may have local ordinances. For example, Charleston's ordinance applies to city contractors and businesses receiving city tax incentives, creating exceptions to the state's general permissiveness. Employers should verify local requirements.

Step 1: Document Everything. If you believe an employer violated ban the box laws or made an illegal employment decision based on criminal history, begin documenting immediately. Keep copies of the job posting and application materials showing when criminal history was requested. Save any communications from the employer about criminal history (emails, text messages, phone call summaries). Retain the background report if you received a copy. If the employer relied on inaccurate criminal history information, obtain a copy of your actual criminal record from the South Carolina Department of Corrections or the relevant court to compare against the background report. Take screenshots of any online applications or portals showing the timing of criminal history questions. Document the date you applied, when you were rejected, and any communications explaining the rejection.

Step 2: Internal Complaint Process. Most employers do not have formal internal appeals processes for ban the box violations, but attempting to work internally first is advisable. Send a written letter to the employer's human resources department or hiring manager (keep a copy) explaining that you were asked about criminal history at an inappropriate stage or denied employment based on inaccurate or expunged criminal history information. Reference the FCRA, EEOC guidance, or the relevant federal contractor ban the box rule if applicable. Request a written response within 10 business days. This creates a documented record and sometimes prompts employers to reconsider. However, do not delay pursuing external remedies while waiting for an internal response.

Step 3: File with the Appropriate Agency. For federal contractors, violations of Executive Order 13635 can be reported to the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). Visit www.dol.gov/agencies/ofccp or call the OFCCP's regional office serving South Carolina (typically the regional office in Atlanta: 404-562-2300). You must file within strict deadlines, typically within one year of the violation. For FCRA violations or Title VII discrimination, file a charge with the Equal Employment Opportunity Commission (EEOC). The EEOC's Charlotte District Office serves South Carolina. Visit eeoc.gov or call 1-800-669-4000 to file online or request a paper form. You have 300 days from the violation to file (South Carolina is a deferral state). When filing, provide your name, contact information, the employer's name and address, the date of the alleged violation, and a detailed description of what happened (including the date you applied, when you were rejected, the basis given for rejection, and why you believe it was illegal).

Step 4: The Investigation Process. Once you file an EEOC charge, the agency will assign it to an investigator. The EEOC typically sends a Notice of Charge to the employer within 10 days. The employer is required to respond within a specified timeframe (usually 30 days), providing documents and their account of the facts. The investigator will request evidence from both parties: from you, documents showing the job posting, application, communications with the employer, and evidence of your qualifications; from the employer, hiring records, application materials, background reports, hiring criteria, and records of other applicants. The investigation typically takes 3 to 6 months but can take longer. You have the right to request updates on progress. If the EEOC finds reasonable cause to believe discrimination occurred, it will issue a finding and attempt to facilitate settlement. If settlement fails, the EEOC may file a lawsuit on your behalf or issue a Right-to-Sue letter allowing you to sue privately. The entire process from filing to Right-to-Sue letter averages 6 to 12 months but can extend beyond that for complex cases.

Step 5: Consult an Attorney. Consider consulting an employment law attorney once you have documented the violation and decided to file with an agency. Many employment attorneys work on contingency, meaning you pay nothing upfront and the attorney's fee comes from your settlement or judgment. An attorney can review the background report and application process to identify legal violations, help you file the agency charge properly to maximize remedies, respond to employer requests for information, and negotiate settlements. If the EEOC issues a Right-to-Sue letter, an attorney is highly recommended before filing a lawsuit. Litigation over ban the box and FCRA violations can be complex, involving statistical evidence of disparate impact and technical FCRA compliance issues. Contact your state bar association or local legal aid office for referrals to qualified employment law attorneys in South Carolina.