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“Ban the Box”: Is it criminal to ask about prior convictions before hiring a candidate?

By June 25, 2013July 23rd, 2018Human Resources

by Laura Pokrzywa


In June 2012, we cautioned our readers against overly broad criminal background check policies. The box on many employment applications that requires applicants to indicate if they have ever been convicted of a crime can fall into that category. Since then, the “Ban the Box” movement continues to gain momentum in cities and states across the nation.


“Ban the Box” started 20 years ago as localized advocacy groups began pushing for legislation that would protect people with histories of arrests or convictions from unfair discrimination by employers. To date, fifty municipalities (including Boston, New York City, Atlanta, Philadelphia, Chicago, Detroit, Seattle, and San Francisco) and nine states have removed questions about criminal records from job applications. And campaigns are well underway in six more states. Most of this legislation applies to public employees. But the push to bar private employers from asking applicants about prior convictions is gaining momentum with legislation already in place in Hawaii, Minnesota and Massachusetts.


The campaign to remove conviction inquiries from job applications challenges the notion that people with conviction histories cannot be trusted or function successfully within the boundaries of employment. Advocacy groups frequently site statistics revealing that one in four Americans have some kind of criminal record. Many of those crimes are relatively minor, are in the distant past, or have been “paid for” with jail time and/or rehabilitation. But these crimes continue to follow many otherwise qualified applicants, making it hard for them to “get a foot in the door”.   


Opponents of “the box” are not protesting an employer’s right to learn about a potential employee’s criminal history. They are most concerned with the timing of that inquiry and whether the applicant is given reasonable consideration, based on individual circumstances.


For example, we reported last year that Pepsi Beverage Company paid $3.1 million to settle federal charges of race discrimination because the “box” on their employment application led to a disproportionate number of black applicants being disqualified based solely on admission of a criminal history. Pepsi was also ordered to revise their hiring practices since no consideration had been given to how much time had passed since the conviction, the nature of the crime or whether the crime had any relevance to the position being filled. A BMW manufacturer and the retailer Dollar General are also currently facing similar law suits related to employment decisions they have made based on criminal background checks.


Like so many other municipalities, the Seattle City Council recently adopted an ordinance that bans the box. It does not prohibit employers from gathering information about an applicant’s criminal history, but it requires employers to wait until qualified applicants are identified before asking for that information. Like many similar ordinances, it also requires a legitimate business reason for denying employment based on a criminal record. For example, a daycare or preschool would have a legitimate business reason to disqualify an applicant who had been convicted of sexual crimes against children.


These ordinances are consistent with guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) in April 2012 on the use of arrest and conviction records in employment under Title VII of the Civil Rights Act of 1964. In the guidance, which applies to all public and private employers, the Commission recommended employers not ask about arrests or convictions on job applications. Instead, the EEOC suggests employers only utilize conviction records after evaluating the nature of the job, the severity of the conviction, the time elapsed since the conviction, and the applicant’s rehabilitative efforts.


Though each city and state has adopted its own variation of the law, in general most ban the box legislation does NOT:

·         obligate employers to hire people with criminal records,

·         prevent any employer from hiring the candidate they think is best for a job, or

·         apply to positions where a background check is directly related to the job (such as public safety positions and positions dealing with vulnerable populations).

Many employers are not waiting for legislation, but have voluntarily removed the conviction inquiry from their application process. In a letter to the editor of a Syracuse, New York newspaper, Marsha Weissman, Executive Director for the Center for Community Alternatives wrote, “Deferring the inquiry about past convictions until later in the application process has saved us time and money by limiting the number of background checks that need to be done. More importantly, doing so ensures that we are able to hire the best applicant, and that we are not needlessly overlooking qualified, motivated job applicants because they have a past conviction. “Banning the box” is not merely a mechanism that can effectively ensure compliance with existing law, it is a ‘best practice’ for hiring job applicants.”


As “Ban the Box” continues to make headlines across the nation, it is a good time to review your hiring practices. Though no Federal law prohibits an employer from asking about arrest and conviction records, arbitrarily denying employment to someone with a record could limit the employment opportunities of some protected groups, thus becoming a legal matter that you would need to defend.

Additional considerations as you review your application process:

·         The Fair Credit Reporting Act (FCRA) requires employers to:

o   advise the applicant in writing that a background check will be conducted,

o   obtain the applicant’s written authorization to obtain the records, and

o   notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

·         It is best to limit your look back at criminal records to be no longer than five to seven years, unless you have a legitimate business reason to extend the search.

·         If you have a legitimate business reason to seek information about past criminal activities on an employment application, make it clear that the applicant should only reveal information related to a criminal conviction. Include a clear statement such as, “Information related to anything other than a conviction or guilty plea should not be disclosed”.