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This week, President Obama announced the Administration’s latest effort to reintegrate ex-offenders into society—this time by “banning the box.”
The “box,” of course, refers to the question on job applications of whether the applicant has been convicted of a crime. Research shows that checking this box reduces the likelihood of a callback or job offer by nearly 50 percent, and the negative impact strongly correlates with race. Interestingly, however, the likelihood of receiving a job offer substantially increases where applicants have a chance to interact with the employer before disclosing any criminal history. The idea behind “banning the box,” therefore, is to delay the disclosure of a criminal background until after applicants have had a chance to establish a first impression undefined by past criminal activity.
Congress is currently considering bipartisan legislation that would “ban the box” for federal hiring and hiring by federal contractors, but in the meantime, the President has directed the Office of Personnel Management (OPM) “to take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.”
The U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that questions about criminal records should be limited to “inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.” The EEOC has also made it clear that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII. For example, because arrest and incarceration rates are particularly high for African American and Hispanic men, a seemingly neutral criminal record screening policy or practice can have the effect of disproportionately screening out African American and Hispanic applicants. Under these circumstances, the employer must be able to show that the criminal record screening policy is job related for the positions in question and consistent with business necessity.
“Ban the box” laws have already been introduced in nineteen states, including California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, and Virginia. Many cities, municipalities, and companies have instituted similar policies.
With President Obama’s focus on “banning the box,” criminal history inquiries are certain to remain a hot button issue, and one likely to attract the attention of the EEOC. Employers should carefully review their hiring procedures to ensure that any criminal background inquiries are job related and not used to categorically exclude ex-offenders. Employers should also stay abreast of the latest legal developments in their area or seek advice from counsel on how to ensure compliance with all relevant laws.