Many applicants are automatically rejected when they check the box that asks whether they have a criminal conviction.
Are convictions always relevant to the applicant’s suitability for the job?
It’s common for employers to check into the criminal records of job applicants. It’s safe to assume that many of these employers reject people with a record. But recent changes in laws around the country are limiting how and when employers can use convictions to reject applicants.
What Is a “Ban the Box” Law?
Several states and localities have passed laws to “ban the box” laws in recent years. The box referred to in the short-hand title of these laws appears on many job applications. Applicants are to check the box if they have ever been convicted of a crime, regardless of the nature of the crime, when it occurred, and what (if any) relevance it has to the job for which they are applying.
As of November 2013, 10 states had adopted ban the box policies (whether by law or administrative order) and of those, four had enacted laws that banned the box for private employers. The laws in the remainder of the states apply to public employers and companies contracting with governmental entities or receiving public funds.
Forty-three U.S. cities and counties, from San Francisco, California, to Jacksonville, Florida, have also enacted ban the box laws. As with some of the state laws, some local ordinances apply only to employers who contract with the government or who receive public monies, while some apply to private employers as well.
While these laws differ from jurisdiction to jurisdiction, they share certain basic features.
Basic features of ban the box laws
Most of the ban the box laws in the U.S.:
- prohibit employers from including a box or question on applications that asks the applicant whether she has prior convictions
- prohibit employers from conducting criminal background checks on applicants prior to either a first live interview or a conditional offer of employment
- require employers to take into consideration the amount of time that has passed since the offense leading to the conviction was committed
- require that any conviction considered be directly relevant to the job for which the applicant applied (such as a tax evasion conviction by an applicant for an accounting job)
- require employers to notify an applicant in writing of a rejection for employment based on a past conviction, and
- require employers to give a rejected applicant an opportunity to provide evidence of any inaccuracies in the criminal record, rehabilitation, or other mitigating factors.
Many of these laws apply only to employers of a certain size (for example, those with 10 or more employees).
“Sensitive” jobs exempted
In most jurisdictions that have enacted ban the box laws, jobs in child care or law enforcement are not subject to the ban, and applicants can be asked about criminal convictions. And, where the job is governed by a federal regulation requiring a background check, that job is also exempt from ban the box laws.
Responding to the EEOC
In enacting these provisions, the states, counties, and cities responded, in part, to a guidance issued in 2012 by the U.S. Equal Employment Opportunity Commission (“EEOC”). Some of the laws incorporate language from that guidance into their text.
In its 2012 guidance to employers, the EEOC cited a survey finding that 92% of employers reported using criminal background checks during some or all hiring. And, the EEOC noted that African Americans and Hispanics are arrested and jailed in proportions that far exceed their percentages of the general population of the U.S. (For example, according to the FBI, 28% of all arrests in 2010 were of African Americans, who make up just 14% of the population. And, according to a Bureau of Justice Statistics Special Report, the incarceration rates for both groups far exceed that for others in the general population.) The EEOC notes that these statistics show a disparate impact of arrest and incarceration policies on certain minority populations.
Guidance: best practices
In response, the agency issued the guidance to direct employers on best practices to avoid discriminating (whether intentionally or unintentionally) against the populations affected by the criminal justice system’s disparities. The EEOC advises employers to:
- eliminate policies or practices that exclude applicants because they have any criminal record
- train managers, hiring principals, and other decision-makers on employment discrimination law
- limit disqualifying offenses to only those that show the applicant is not fit for the job applied for
- limit inquiry into offenses to only those within a specified period of years prior to the application for employment, and
- conduct an individualized assessment of each applicant.
The guidance notes that some criminal record inquiries are required by federal law for airport security screeners, federal law enforcement officers, jobs in child care in federal agencies, bank employees, and port workers, among others. Inquiries into applicant criminal convictions are allowed for such jobs under federal anti-discrimination law.
EEOC has sued employers who did not ban the box
The EEOC guidance is not a law but the EEOC has filed discrimination lawsuits against two employers for allegedly using background checks in a manner that may have had a disproportionate effect on African American applicants. In each case, the agency alleged that the employer had rejected applicants who had past criminal convictions without assessing each applicant individually. In support of its claims, the EEOC cited statistical evidence that the companies’ policies led to disparities in the hiring rates of African American applicants.
Ex-Offender Rejection Policies Are Illogical
Putting aside the discriminatory effect of company policies rejecting applicants with criminal records, such policies defy logic. Individuals who are barred from legitimate employment due to past crimes (for which they have paid their debt to society) are more likely to be forced into sketchier and even illegal means to make ends meet. Giving ex-offenders a chance to participate in their communities and make contributions benefits the ex-offenders and society itself.
Check Your Local and State Laws; Know Your Rights
If you want to find out what the law is in your state and locality on employers and criminal background checks, the National Employment Law Projects Resource Guide (see the link above) is a good place to start. Another great resource is an attorney with experience in employment law in your area.