Ban the Box Laws in Washington: Criminal History in Hiring

Federal law does not impose a blanket ban on criminal history inquiries during hiring. However, the 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. Criminal history inquiries can violate Title VII if they have a disproportionate impact on protected classes (particularly African American and Latino applicants) without business necessity, or if applied inconsistently. The EEOC's 2012 guidance recommends that employers delay criminal history inquiries until after a conditional offer, but does not mandate it federally.

Federal contractors covered by Executive Order 11246 must comply with affirmative action requirements, and some federal programs impose restrictions on hiring individuals with certain criminal convictions. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., governs consumer reports including background checks but does not ban criminal history inquiries. The EEOC enforces Title VII complaints, and the Department of Labor enforces contractor compliance. Without state-level restrictions, employers can generally ask about criminal history at any stage, though doing so can expose them to Title VII liability if the practice has disparate impact.

Washington State's ban the box law, codified in RCW § 19.503.010 et seq., significantly restricts employer criminal history inquiries compared to federal law. Under Washington law, employers are prohibited from asking job applicants—either orally or in writing—about their criminal history before making a conditional offer of employment. A "conditional offer" means a written offer contingent on satisfactory completion of a background check.

Washington's ban the box applies to employers with 15 or more employees, including state agencies and local government entities. The law covers all types of criminal history inquiries, including arrests, charges, and convictions. This is substantially stronger than federal baseline requirements, which impose no blanket timing restriction.

Once a conditional offer is extended, employers may conduct a criminal background check and ask about criminal history relevant to the position. However, employers must then conduct an individualized assessment considering the nature and seriousness of the crime, how much time has passed, and the nature of the job. Employers cannot automatically disqualify applicants based on criminal history; they must evaluate each case individually and provide the applicant notice if criminal history is the reason for withdrawal of the offer.

Washington's rule is substantially more employee-protective than federal law. While the EEOC discourages early criminal inquiries due to disparate impact concerns, Washington mandates it as a matter of state law. Additionally, Seattle, Spokane, and other Washington cities have enacted ordinances with even stricter timelines—some requiring that background checks occur only after a formal conditional offer and final interview stage.

Remedies under Washington law include civil penalties of up to $1,000 per violation, plus reasonable attorney fees and costs for the applicant or aggrieved party. The Washington Department of Labor & Industries enforces the law, and private applicants can bring civil actions.

Washington's ban the box law contains important exceptions and carve-outs. First, employers with fewer than 15 employees are exempt from the state law requirement, though they may still be subject to federal Title VII disparate impact liability and local city ordinances (e.g., Seattle's law covers smaller employers).

Second, RCW § 19.503.020 exempts certain positions and employers. Law enforcement agencies, corrections departments, and bail and community supervision agencies are explicitly exempt. This reflects the government's interest in conducting criminal history checks for public safety positions where criminal history is directly job-related and has overwhelming business necessity.

Third, positions requiring state or federal background checks for licensing, bonding, or clearance purposes may be exempt. For example, positions requiring security clearances, professional licenses (nursing, teaching), or employment in certain financial institutions may be exempt if law mandates the background check.

Fourth, the law does not prohibit employers from asking about criminal history after a conditional offer is made. Once the conditional offer stage is reached, employers may ask about convictions, arrests, and charges without restriction.

Fifth, the law does not apply to inquiries about driving history for positions that involve driving, or to inquiries about professional misconduct or disciplinary history with professional licensing boards.

Sixth, some employers are covered by federal regulations imposing criminal background checks as a prerequisite (federal contractors, healthcare providers under HIPAA, financial institutions under GLBA). These employers may have additional obligations but must still comply with Washington's timing restrictions to the extent possible.

Seventh, the "at-will employment" doctrine still applies; employers can decline to hire applicants for lawful reasons unrelated to criminal history. However, if an employer's stated reason is pretextual and the true reason is criminal history discovered through improper early inquiry, liability may attach.

If you believe an employer violated Washington's ban the box law, follow these steps:

Step 1: Document the violation immediately. Record the date, time, and method of the criminal history inquiry (application form, phone call, interview question). Save the job application, email, or written communication where the question was asked. Note whether you had yet received a conditional offer in writing. Take screenshots of online applications. Write down the names of anyone present when an oral inquiry was made. Keep all communications related to the job application, hiring process, and any rejection letter.

Step 2: File an internal complaint with the employer's HR or management department if you wish to attempt internal resolution. Send a written complaint (email or certified letter) stating: "I was asked about my criminal history before receiving a conditional written offer of employment, which violates RCW § 19.503.010. This occurred on [date] by [person/method]. I request [remedy: reversal of decision, reconsideration, damages]." However, internal complaint is not required by law to pursue external relief. If the employer ignores your complaint or retaliates, document that as well.

Step 3: File a complaint with the Washington Department of Labor & Industries. Visit the agency's website at www.lni.wa.gov or call 1-800-4-SAFETY (1-800-473-2339). File online through the Department's complaint portal, or submit a written complaint by mail to: Department of Labor & Industries, P.O. Box 44000, Olympia, WA 98504-4000. Include your name, contact information, the employer's name and address, dates of the violation, detailed description of the inquiry, and the job title applied for. The agency will assign an investigator.

Step 4: Alternatively or additionally, file a private civil action in Washington Superior Court. You do not need to exhaust administrative remedies first. Consult an attorney licensed in Washington. You have no specific statute of limitations under the ban the box law itself, but general civil contract and tort limitations (typically 3-6 years) may apply. In your lawsuit, you can seek actual damages (lost wages, emotional distress), civil penalties up to $1,000 per violation, court costs, and reasonable attorney fees.

Step 5: Consult an employment attorney in Washington if the violation caused significant harm (e.g., you were not hired, you incurred emotional distress). An employment lawyer can: (a) send a demand letter to the employer, (b) investigate whether the violation was pattern-and-practice (multiple applicants) which increases penalty exposure, (c) file in Superior Court for civil damages and penalties, or (d) coordinate with the Department of Labor & Industries complaint. Many employment attorneys offer free initial consultations. Look for lawyers certified in employment law by the Washington State Bar Association or members of the Washington Employment Lawyers Association.