In April 2012 the EEOC issued guidance on the use of an applicant’s criminal history in making hiring decisions. This guidance has been followed by a rush of “Ban the Box” or “Fair Chance” legislation across the nation. These state and municipal laws prohibit employers from inquiring into a job candidate’s criminal history during interviews and even on a job application. Proponents argue that early questions about an applicant’s criminal history have a disproportionate adverse impact on minorities and limit their ability to get jobs. Critics, on the other hand, point to social science research suggesting that these laws actually increase the racial gap in hiring because, without having any way to distinguish individuals who have committed crimes from those who are crime-free, employers tend to fall back on racial stereotypes and choose to not consider applicants with ethnic-sounding names.1
These laws take many forms and do not ban employers from conducting criminal background checks altogether. Most simply delay the criminal background check until later in the hiring process. As of October 1, 2016, a total of 9 states and numerous cities have enacted Ban the Box legislation applying to private employers, including: Connecticut (2016), Hawaii (1998), Illinois (2014), Massachusetts (2010), Minnesota (2013), New Jersey (2014), Oregon (2015), Rhode Island (2013), and Vermont (2016, 2015), the District of Columbia (2014), Austin, TX (2016), Baltimore MD (2014), Buffalo, NY (2013), Chicago, Il (2015), Columbia, MO (2014), Montgomery County, MD (2015), New York City (2015), Philadelphia, PA (2016), Portland, OR (2016), Prince George’s County, MD (2015), Rochester, NY (2014), San Francisco, CA (2014), and Seattle, WA (2013). Moreover, a total of 23 states and over 100 cities and counties have enacted Ban the Box legislation that applies to public employers.
Just as an example, New Jersey’s Ban the Box legislation went into effect on March 1, 2015, and prohibits private and public employers of 15 or more employees from asking about an applicant’s criminal history on the initial job application. The law also makes it illegal for employers to publish advertisements stating the employer will not consider applicants who have been arrested or convicted of a crime.
Hawaii’s law goes even further, allowing employers to deny employment only if the conviction occurred within the past ten years and bears a rational relationship to the specific job duties of the position sought. Similarly, employers in the District of Columbia with 10 or more employees may only withdraw conditional offers of employment based on criminal history for a legitimate business reason.
Employers in Ban the Box states, cities, and counties should review and revise their job advertisements, initial job applications, and hiring practices to ensure compliance with the law. But, because this is a growing trend, all employers would be wise to carefully monitor the law in the jurisdictions in which they operate.
For the latest information on this trend, or for help complying with the law where you operate, please give BurnsBarton attorney Katya Lancero a call at 602.753.4509 or by email at Katya@burnsbarton.com.
1. [‘Ban The Box’ Laws, Do They Help Job Applicants With Criminal Histories? NPR, July 19, 2016, available at http://www.npr.org/2016/07/19/486571633/are-ban-the-box-laws-helping-job-applicants-with-criminal-histories.