“Ban the box” refers to the initiatives, which have gained widespread traction, by which laws are put into place that prohibit employers from asking questions of applicants regarding previous Criminal History (and discriminating against them on the basis of their answer) too early in the hiring and recruiting process. These types of initiatives have been around since at least the ’90s but are becoming more and more common.
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The theory goes that not all Criminal offenses are created equally, but by asking about previous criminal history, arrest records, or other similar background screening questions too soon in the recruiting process, the employer risks eliminating an otherwise qualified individual without real cause. Not just any criminal activity should be cause for disqualification from employment by default. And the Equal Employment Opportunity Commission (EEOC) and other civil rights activists point out that asking this type of question up front and using it as a disqualifier often disproportionately affects individuals in protected classes, making it a matter of discrimination—even if such discrimination is inadvertent or with theoretically good intent.
From a social perspective, part of the reason behind this initiative is to reduce the likelihood that someone with a criminal past will continue down that path. It’s notoriously difficult for those with a criminal history to get a job, which, unfortunately, means they are left with few options to support themselves and may be more likely to reoffend. By making it easier to get gainful employment, the incidence of reoffending can be reduced. Even without reoffending, individuals in this situation are faced with few choices for making a living. This is a major issue, given that there are millions of individuals who have some type of criminal record.
The initiatives to get this type of questioning off of applications have resulted in “ban the box” laws in dozens of cities and localities and almost one-half of states. (The “box” in question refers to a checkbox on an application asking about whether the applicant has any criminal convictions.) The laws now in place vary in terms of their specifics, but in general, they usually require employers to refrain from asking about criminal history too early in the application process, and instead allow applicants to get through the interview process or even to the offer stage before such queries come up. Here are a few more ways the laws vary:
- They vary in terms of which employers are affected, often setting a minimum number of employees before an employer is subject to the law.
- They vary on when such lines of questioning can be opened, such as after the initial interview or not until a conditional offer has been made.
- They even vary on what specific criminal inquiries can be made.
- Some laws have taken the further step of outlining when a criminal history can be held against a job candidate, requiring that the offense be job-related in some capacity for the employer to consider it.
- Some of the laws also delineate time frames after which criminal convictions can no longer be considered relevant.
- Some place additional requirements on employers, such as distribution of notices related to the applicant’s rights on this matter and how the information will be used.
Employers should be aware of the laws that are in effect in all jurisdictions of operation. Many employers have opted to create their own policies companywide, which are in compliance with the strictest of any laws at any local level, to ensure legal compliance. But even then, employers should be careful, as many of the laws have conflicting requirements in different jurisdictions.
Employers also must be aware of their restrictions and be sure to train everyone involved in the hiring process to ensure that everyone knows when these types of queries can be presented and what employers can and cannot hold against an applicant in terms of criminal history. Employers also must be sure to train hiring teams on antidiscrimination laws in general and must ensure that they’re not creating a situation where hiring teams inadvertently discriminate by making assumptions about applicants, even in the absence of criminal history inquiries up front. (This is, in fact, one of the biggest problems associated with “ban the box” initiatives; in the absence of data about criminal history, those involved in the hiring process may be more likely to discriminate on the basis of stereotypes.)
Employers understandably still want to conduct background screenings—and they still can—but they must be aware that some questions cannot be asked until later in the hiring process to ensure that no one is unfairly excluded too soon. Employers are not required to hire someone who has a criminal history who would present a clear problem, such as a history of financial fraud working at a bank. But employers are required in most cases not to unfairly eliminate candidates up front without first giving them a chance.
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