The ‘Ban the Box’ Movement

Posted on: January 16, 2015

An historically common practice of employers is to include an inquiry regarding criminal history, or past felony conviction, on the job application as a fill-in-the-blank “yes” or “no” question. Due to the constant evolution and amendment of pre-employment laws and compliant background checking practices, though, some believe that this procedure may be due greater scrutiny.

Currently, there is a trend known as the “Ban the Box” movement that is pushing employers away from this practice, and instead offers a much more personal and case-by-case basis of analysis of an applicant’s arrest and conviction history.

The goal of the Ban the Box movement is to defer criminal history inquisition until considerably later in the hiring process. It aims to increase fairness for applicants with a criminal history, and to reduce the traditional automatic disqualification from consideration for the job due to such a history.

The movement offers that this method of consideration before disqualification will aid such applicants in entering or returning to the work force. The National Employment Law Project including that 1 in 4 Americans have some sort of arrest or conviction on their criminal record. These records can become a barrier to gaining employment.

Some cities and states have already enacted legislation to eliminate criminal records inquiry checkboxes from pre-employment applications. These laws tend to include that the employer postpone questions regarding criminal history during the initial employment steps, and instead call for questions of this kind to be brought up once the potential employee has already passed the initial applicant screening process (during the job interview, for instance).

The intended result of this practice is to encourage employers to consider applicant-specific details regarding their criminal history. The state of Minnesota disallows inquiry into criminal history until the applicant has made it through the pre-employment interview or has received a conditional job offer, for example.

One major proponent of the Ban the Box movement is the Equal Employment Opportunity Committee (EEOC), which aspires to make criminal record inquiries to be on an applicant specific basis, wherein questions are tailored to take into consideration whether or not any criminal history the applicant has would have any practical relationship to the job in question.

The EEOC also asserts that employers should consider the severity of the crime reported by the potential employee (or by their background check), how much time has elapsed since the conviction, and that employers refrain from denying employment to an applicant without due consideration of the details of the applicant’s specific criminal history. There are job-specific exceptions, though, including employers hiring for positions involving work with children and/or vulnerable adults

Another concern of the EEOC is that due to the relatively high distribution of racial minority arrest and conviction rates in comparison to non-minorities, disqualification from hiring based purely on a “yes” or “no” basis in regard to criminal history is in potential violation of Title VII of the Civil Rights Act of 1964, which states that it is unlawful for an employer “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities…” It is notable here that due to the non-normal distribution of conviction rates between minorities and non-minorities, disqualifying applicants due to the presence of a criminal history without considering the details of that history would tend to bar minorities from employment at a greater rate than non-minorities.

Many larger companies, in an effort to avoid legal challenges and maintain the uniformity of their application process, have simply banned the box on all applications proactively. A larger number of employers believe that there are already effective laws restricting discrimination and protecting the rights of job applicants and that this practice is another step down the slippery slope of creating a protected class of criminal offenders.

The key takeaway is that even though the “Box” may become “Banned”, with an effective and compliant background checking program and adequate verifications of past employers/education the employer will still have access to the information needed to make intelligent hiring decisions.

 


 

Civil Rights Act of 1964 s 703 (18 November 2014)

Downey, Maralee. “Criminal Background Checks: “Ban the Box” Movement.”