A criminal record can be one of the most significant impediments to finding a job in the United States. At the same time, gainful employment is considered to be a major factor in preventing recidivism among people with criminal records. A large number of states and cities have tried to solve this problem by passing ban the box laws.
Ban the box laws limit the ability of an employer to consider an applicant's criminal history during the hiring process.
In the phrase "ban the box," the “box” refers to the yes/no checkbox that often appears on job applications with a question like “Have you ever been convicted of a crime?” In the absence of ban the box laws, many employers simply dismiss applicants who answer "yes" to this question, even when the conduct occurred a long time ago or has no bearing on the job they're seeking.
The campaign for ban the box laws began more than twenty years ago. More than half the states, the District of Columbia, and numerous cities have enacted such laws. Many of these laws apply only to government employers, but sometimes also to government contractors. Some cities and states have ban the box laws that cover private employers as well.
Ban the box laws generally prohibit employers from inquiring about criminal history during the initial stages of the hiring process. In addition to prohibiting such a question on a job application, ban the box laws also sometimes impose further limits.
Many ban the box laws prohibit employers from stating in job listings that a position is not available to anyone with a criminal record.
In addition to banning questions about criminal history on written applications, ban the box generally bar employers from asking applicants directly about this issue during job interviews.
Many ban the box laws only allow employers to look into a job applicant’s criminal history after they have extended a conditional offer of employment. If an employer decides not to hire an applicant because of information contained in their criminal record, they must give written notice to the applicant explaining the reasons for the adverse decision. The applicant must have an opportunity to respond.
Most ban the box laws contain exceptions under which employers are sometimes allowed to consider a person's criminal past.
If an applicant's criminal history has a direct bearing on the job they're seeking—for example, a person with an embezzlement conviction applies for a job as corporate treasurer—an employer might be permitted to consider this information.
Ban the box laws also don't apply where another state or federal law prohibits hiring the person. For example, many states bar individuals with certain convictions from working in daycares, nursing homes, or in law enforcement.
Another common exemption is if the employer reasonably believes, based on the applicant’s criminal history, that hiring them would pose a danger to their employees, customers, or property.
As of 2020, a total of 14 states and the District of Columbia limit private employers' ability to inquire into a job applicant's criminal history. The states with ban the box laws that apply to private employers are:
And, more than 30 states and hundreds of cities and counties have enacted laws or adopted policies that prohibit criminal history inquiries by government employers during the early stages of hiring.
Even in the absence of a ban the box law, other federal, state, or local laws can limit an employer's ability to consider a job applicant's criminal past.
The Equal Employment Opportunity Commission (EEOC) has issued guidance regarding the use of criminal records, including both arrests and convictions, in hiring. Title VII of the Civil Rights Act prohibits employers from discriminating on the basis of five factors: race, color, national origin, sex, and religion.
Claims for employment discrimination under Title VII may include both “disparate treatment,” meaning overt discrimination, and “disparate impact.” The latter type of claim arises when an employer’s policy or practice has a disproportionate impact on members of a protected group, even if the employer had no discriminatory intent. A hiring policy that excludes anyone with a criminal conviction could therefore violate Title VII if it disproportionately affects certain applicants along racial lines.
The EEOC has stated that this sort of hiring policy violates Title VII unless the employer considers the following:
Credit reports often contain information about criminal history. If an employer uses a credit reporting agency to run background checks on job applicants, they must follow procedures established by the Fair Credit Reporting Act (FCRA). The applicant must receive written notice that the employer intends to do a background check and obtain a credit report, and must give permission for the employer to do so.
If the employer makes an adverse decision based on information in the credit report, the employer must give the applicant a copy of the report, information about the applicant’s rights under the FCRA, and contact information for the credit reporting agency. The applicant has the right to request that the credit reporting agency correct inaccurate information and notify the employer.
If you're an employer or job applicant with questions about the ban the box laws in your area, consider contacting a knowledgeable employment lawyer for guidance.