Screening, Assessment, Interviewing

What are “Ban the Box” Laws?

“Ban the box” refers to the initiatives, which have gained widespread traction, in which laws are being put into place that prohibit employers from asking questions of applicants regarding previous criminal history (and discriminating against them based on their answer) too early in the hiring and recruiting process.

These types of initiatives have been around since at least the ‘90s, but are becoming more and more common.

The theory goes that not all criminal offenses are created equal, but by asking about previous criminal history or arrest records or other similar background screening questions too soon, the employer risks eliminating an otherwise qualified individual without real cause. Not just any criminal activity should be cause for disqualification from employment by default. And the EEOC and other civil rights activists point out that asking this type of question up front and using it as a disqualifier often disproportionately affects individuals in protected classes—making it a matter of discrimination, even if such discrimination is inadvertent or with theoretically good intent.

From a societal perspective, part of the reason behind this initiative is to reduce the likelihood that someone with a criminal past will continue down that path. It’s notoriously difficult for someone who has a criminal history to get a job, which, unfortunately, means they are left with few options to support themselves and may be more likely to reoffend. By making it easier to get gainful employment, the incidence of reoffending can be reduced. Even without reoffending, individuals in this situation are faced with few choices for making a living. This is a major issue, given that there are literally millions of individuals who have some type of criminal record.

The initiatives to get this type of questioning off of applications have resulted in “ban the box” laws in dozens of cities and localities and almost half of the states. (The “box” in question refers to a checkbox on an application asking about whether or not the applicant has any criminal convictions.) The laws now in place vary in terms of their specifics, but in general they usually require employers to refrain from asking about criminal history too early in the application process, and instead allow applicants to get through the interview process or even to the offer stage before such queries come up.

Here are a few more ways the laws vary:

  • They vary in terms of which employers are affected, often setting a minimum number of employees before an employer is subject to the law.
  • They vary on when such lines of questioning can be opened, such as after the initial interview or not until a conditional offer has been made.
  • They even vary on what specific criminal inquiries can be made.
  • Some laws have taken the further step of outlining when a criminal history can be held against a job candidate, requiring that the offense be job-related in some capacity for the employer to consider it.
  • Some of the laws also delineate timeframes after which criminal convictions can no longer be considered relevant.
  • Some place additional requirements on employers, such as distribution of notices related to the applicant’s rights on this matter and how the information will be used.

Tomorrow, more on ban the box laws.