“Ban the box” refers to a grassroots effort to remove the check box on job applications that asks if a candidate has ever been convicted of a crime. Laws that limit criminal record inquiries are also referred to as “fair chance” laws.
Twenty-four states and more than 150 cities and counties have passed such a measure, according to the National Employment Law Project (NELP), a worker advocacy organization based in New York City.
No matter what side of the punishment/rehabilitation debate you fall on, you can probably agree that the overall goal is to prevent ex-offenders from committing further crimes. And keeping ex-offenders from getting legitimate jobs is directly contrary to that goal, since that leaves them with no option except for the (illegal) means that got them in trouble in the first place.
And make no mistake, that box on employment applications does keep them from getting jobs. After all, it’s very common for hiring managers/owners to get far more resumes for each open position than they could even interview. So in that very initial stage of application reviews, it’s almost as much looking for Reasons Why Not as anything else. That checkbox of “convicted of a crime” is an immediate black mark, even if it’s ages ago and/or totally irrelevant.
Also, keep in mind that the “ban the box” movement only bans it on the initial applications. So you can still just ask the question in person – where you can hear a full explanation, understand the circumstances, and better decide if the criminal history is relevant.
“Robust fair-chance employment laws ensure a fairer decision-making process by requiring employers to consider job-relatedness of a conviction, time passed, and mitigating circumstances or rehabilitation evidence.
Without the box on the application, employers may be more likely to guess that black and Hispanic men have a criminal record.
Pamela Devata, an attorney with Seyfarth Shaw in Chicago, said that most employers had already removed the criminal history question from their job application form after the Equal Employment Opportunity Commission issued criminal history guidance in April 2012.
The state and local ban-the-box laws place additional restrictions on employers as to when they can ask about criminal records, what their job postings must or cannot say, and what analysis employers must undertake when considering taking adverse action based on a criminal record, Devata added.
Rod Fliegel, an attorney with Littler in San Francisco, said it is difficult when performing a statistical analysis to determine the causal relationship between ban the box and hiring, especially when considering how complex the hiring process can be. However, ban-the-box laws are sensitizing employers to the need to be judicious in the hiring process, he added.
“Most employers make hiring decisions based on good faith, and the ban-the-box laws do typically encourage employers to conduct an interview or go further in the application process before requesting criminal background information,” said Jay Hux, an attorney with Fisher Phillips in Chicago.