Job applications are a quick and effective way to get more information about whether job candidates are qualified for a position. Including knock-out questions on an upfront application about specific requirements for the job can eliminate candidates before progressing them to more costly stages of the hiring process. One question sometimes utilized is asking whether candidates have a prior criminal conviction, which is often framed as a yes or no question. Using this yes/no question does not to take into account the complexity of the answer and whether the conviction is related to the job in question. More importantly, the Equal Employment Opportunity Commission suggests that utilizing this type of question may put protected classes at a disadvantage because African Americans and Latinos tend to have higher rates of convictions than whites. Recognizing this potentially unfair treatment to protected classes and the possibility for adverse impact, more and more legislation is taking effect to “ban the box.”
Back Up…What’s Ban the Box?
Over the past 9 years, several cities, counties, and states have adopted ban the box, which is an initiative regulating the use of criminal history questions in job applications. As of the time this blog was written, 53 local jurisdictions across the United States, including larger cities (e.g., Chicago, Philadelphia, San Francisco, and Baltimore) and states (e.g., Massachusetts, Hawaii, and Minnesota), have implemented this policy. While the exact regulations differ by jurisdiction, these policies enforce if and/or when hiring managers can ask about prior criminal convictions. For example, Richmond, CA very recently passed a policy banning questions about criminal history from public and private businesses that contract with the city. The only exception for the ordinance is for jobs that directly deal with children and seniors. While the law doesn’t prevent an employer from conducting a background check, it does prevent the use of criminal history as a screening device. Other ordinances, such as one in the District of Columbia, only have the regulations apply to public companies. Despite these differences between jurisdictions, the goal of the policies is to remove unfair barriers to employment of people with criminal records as well as to avoid discrimination among protected classes. The National Employment Law Project estimates that approximately 65 million adults have arrest or conviction records. Therefore, the idea is to ensure that there is an even playing field for all candidates during the initial stages of the hiring process. In this case, the focus is on the candidates’ qualifications and abilities, not solely on their past convictions.
Currently, there are not any federal regulations around ban the box, but the Equal Employment Opportunity Commission (EEOC), which is a watchdog for workplace discrimination, has taken a stand. The EEOC states that using these records could potentially limit the employment opportunities of some protected groups and thereby violate Title VII of the 1964 Civil Rights Act. Specifically, they report that African Americans and Latinos have a much higher rate of arrest and conviction than whites, which could cause disparate treatment and disparate impact.
Recognizing that there are many unknowns associated with asking this yes/no question (e.g., an assumption that a conviction equates to guilt), the EEOC recommends providing candidates the ability to explain the circumstances of the conviction by conducting an individualized assessment prior to disqualifying a candidate. Furthermore, the employer should consider (1) the nature of the job, (2) the type and seriousness of the offense, and (3) the amount of time that has passed since the offense. Although the agency has not banned the box, they do suggest that employers refrain from asking about convictions in employment applications as a best practice.
How Does this Affect Me?
Even if you are working in an area that does not have regulations in place or are working for a private company that does not contract with the government, it’s still important to be aware of these policies. The EEOC has been very proactive in making sure background checks, when justified by business necessity or law, do not disadvantage a protected group. Within the past couple of months, the EEOC has brought lawsuits against multiple employers because they utilize a criminal conviction background check policy that potentially has disparate impact on black employees and is not consistent with business necessity. The EEOC stresses that more rigorous individualized assessments should be in place when examining criminal convictions. These lawsuits are still awaiting trial.
More recently, in the court case EEOC v. Freeman, the EEOC filed a suit suggesting that the company’s criminal background checks had adverse impact against African Americans, Hispanics, and males. In the end, the judge ruled in favor of Freeman because the evidence for disparate impact was neither reliable nor compelling. However, this does bring to light the importance of making sure companies are complying with their local ordinances as well as utilizing the best practices offered by the EEOC. Disqualification based on criminal history is an easy and clear decision. Ban the box legislation recognizes this idea and refocuses the initial application on the candidate’s knowledge, skills, and abilities.
As legislation continues to change, it will be critical for companies to be alert to these changes made by local jurisdictions as well as to the outcomes of these court cases. Additionally, it’s a good idea to take advantage of the “best practices” suggested by the EEOC: (1) only utilize a criminal conviction background check if it is consistent with business necessity or law and (2) conduct an individualized assessment when examining convictions by considering the job itself, the nature and seriousness of the offense, and the amount of time that has passed since the conviction. As quickly as ban the box legislation is taking effect, prevention is the best method moving forward.