Ban the Box Movement Grows, Seeks Changes to Job Applications

Across the United States, it’s common for employers to ask potential employees about their criminal histories. This may be done for a variety of reasons, but the outcome tends to be the same: those with a conviction are often penalized and turned away from jobs despite other qualifications. It’s a huge problem and, compounded by the worrying correlation between criminal history and race in the U.S., has turned “the box” – the check box on job applications that asks about a person’s criminal record – into one of the most controversial aspects of job hunting.

Things are now changing. Thirteen states – the most recent including New Jersey and Illinois – have now “banned the box” by removing the question about criminal convictions from the initial application process and banning employers from inquiring about past convictions until after the individual has filled out an application or gone on an initial interview. It’s a big change in the way companies hire their workers – but why is it just now taking off, and how has the movement spread?

Making Convictions History: Should Employers Always Know About Criminal Records?

For civil rights campaigners, the criminal conviction box on applications presents an unfair obstacle to offenders who are trying to assimilate back into society. How long, they ask, should someone’s past deeds prevent them from continuing their life? Convictions can stem from crimes – even relatively small misdemeanors – that occurred years ago. By allowing companies to ask about criminal history, but preventing them from doing so until the employee has gone through the initial employment application process, the movement hopes to help remove the stigma and automatic disqualification associated with past criminal records. There is also a racial aspect to this: criminal convictions affect a disproportionate number of black men, and seeing this as a reflection of wider societal problems and prejudice, it’s not hard to see why “the box” quickly becomes a potentially discriminatory practice. If a certain group of people are, in general, more likely to be convicted, and convictions also prevent them from finding employment later on in life, something clearly has to change. According to the National Employment Law Project (NELP), the organization behind the movement:

Protecting Civil Rights, Fighting Discrimination

On August 11, New Jersey became the latest state to ban the box by enacting a law that applies to all companies with fifteen employees or more. Companies are now prohibited from inquiring about past convictions during the “initial employment application process.” The law will take effect in March 2015. One month earlier, Illinois enacted a similar law that will come into effect on January 1, 2015. The movement is now well on its way, and at least one city or town in each of the following states has banned the box: California, Conn4ecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington, District of Columbia, and Wisconsin.

In April 2012, the Equal Employment Opportunities Commission (EEOC) also agreed to clarify and affirm certain aspects of employment decisions, and now require employers to:

• Consider only convictions directly related to job responsibilities
• Conduct an individualized assessment of the circumstances of any conviction and whether an applicant is likely to commit the same crime again.

Discrimination based upon criminal conviction is now considered a potential violation of state employment laws.

Don’t Employers Have a Right to Hire Who They Want?

To a degree, yes. The argument that a private company should hire who they want presumes that companies will never be racist, sexist, ageist, etc.

Employment laws are constantly working to address the imbalance and encourage fair hiring practices. Critics of the movement to “ban the box” argue that making it a crime to deny employment because of criminal conviction risks employers being sued by individuals who, having failed to get a job, claim their criminal record was to blame. Others have argued that hiring new employees without all the facts is inherently problematic. There are certainly some issues that remain unclear. Could a company who hired a convicted felon without knowing then be sued if the individual causes harm or damage to other staff or customers? Such cases already exist, and employers are understandably cautious about anything that prevents them from seeing the whole picture.

There are also other problems: As the movement gains support across the United States piece-meal, with no federal laws, anti-discrimination regulations are becoming disjointed, with different states and cities requiring different things. Companies with offices in multiple locations must now ensure compliance with sometimes contradictory laws. It’s not an ideal solution: but is it better than having no regulations at all? That remains to be seen. The movement is still growing, but the momentum is clear. The time when employers could instantly dismiss an applicant for having a criminal conviction may be behind us, and the time for more open-minded hiring practices is here.