Ban the Box—the international civil rights movement aimed at persuading employers to remove the check box that asks if applicants have a criminal record from their hiring applications is more than a trend. It’s a movement that has taken a strong hold in the form of “Fair Chance” laws across an increasing number of states and cities. The laws aim to help the estimated 33% of adults with a criminal past get a fair shot at finding work.
Following Hawaii’s first Ban the Box (BTB) “Fair Chance” law in 1998, versions of the BTB have spread to 33 states and over 150 local jurisdictions, according to the National Employment Law Project. Since these jurisdictions include most of the largest states and cities, it’s very likely that a big majority of employers are subject to one (or more!) Ban the Box laws.
Despite the multitude of laws passed in independent jurisdictions, there is a common core in their purpose. From the beginning, BTB laws have aimed to eliminate the practice of having a blanket hiring policy of rejecting any job applicant who has a criminal history. The phrase “ban the box” comes from the idea of eliminating the check box for “yes” to having a criminal history being the basis for rejection.
Ban-the-Box is Evolving
Across time and space, BTB laws have evolved in many directions. In the early years, there was a significant difference between laws regarding which employers were covered. Some jurisdictions had laws that applied only to public employees, typically with exceptions for job categories like law enforcement for which a blanket exclusion was a legal mandate.
More recently, many laws have applied to all or most employers, private and public, though exceptions for job categories are still common. Some laws have incorporated very detailed requirements for how the hiring process must be designed. For example, some laws now mandate that the employer may not do a criminal background check until well in to the process when a candidate has passed a first interview, or even received a contingent offer of employment.
One of the more recent innovations in BTB is to require an individualized assessment for any applicant who might be excluded due to criminal history. This reflects the emphasis in the Equal Employment Opportunity Commission’s guidance on the use of arrest and conviction records in employment decisions. The central point in this is to treat individuals as individuals, not as members of a class of any kind. In this respect, it is consistent with the original intent of BTB.
BTB laws remain controversial. Recent research in early adopter Hawaii found that after the implementation of the BTB law, criminal defendants were 57% less likely to have a prior conviction, suggesting that being able to get a job may have contributed to lower criminal behavior and/or recidivism. However, other research suggests that BTB laws may actually decrease the chances of African American or Hispanic men getting a job because they might simply be eliminated from the search pool in the first place. The irony of BTB causing the exact kind of discrimination the employment law is intended to restrict is not lost.
Whether BTB reduces minority employment or not, employers living in the jurisdictions with those laws should be careful to comply. Aggressive trial lawyers and advocacy organizations use these laws to go after employers they perceive as discriminating. Where employers might be covered by more than one law (not uncommon), a safe strategy would be to design the hiring process to comply with every mandate, and thus be in compliance with each law.
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