WHAT IS "BAN THE BOX"?

A “ban the box” law prohibits employers from requesting a potential employee’s criminal history on a job application in certain states and localities. Some laws forbid a company from asking if the candidate was ever sentenced for a crime until a specific time in the hiring process, such as during an interview or after a conditional offer of employment.

1 In 3 Unemployed American Adults Have a Criminal History

In the past, having a criminal history prevented some potentially great job candidates from being hired, regardless of how long ago the crime took place, how minor the infraction was, or how good of a fit they might be for the role. When you consider that an estimated 70 million Americans—one in three unemployed Americans who are of working age—have some kind of criminal history, it’s not difficult to understand how requiring a squeaky-clean record could become problematic for some jobs.

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Most Past Convictions Are Not Directly Related To Jobs Sought

People deserve the chance to be judged based on their qualifications, not their past convictions. Discrimination stops many people with conviction records from securing jobs; once they find a job, most are exceptionally hard workers, determined to keep their employment.

Even People Without Convictions Can Be Discriminated Against

Many criminal background checks fail to distinguish between someone being arrested or charged and actually being convicted. Potential employees are routinely asked on job applications if they’ve “ever been arrested for a serious crime.” Not if they have a conviction history…simply arrested. It’s easy to see how checking “yes” on this box could be used to take some candidates out of the running for a job. This is exactly the reason why many states and localities are passing laws to protect job hunters who have a criminal record from being immediately disqualified during the hiring process.

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Ban the Box Is Good for Children and Families

Colorado is one of the most recent states with laws requiring employers to ban the box with its Colorado Chance to Compete Act (CCCA). They, like other states that have implemented the ban, found that:

Previous involvement with the criminal justice system often creates a significant barrier to employment in that applicants with criminal histories are less likely to be considered for an available job when that information is included on an initial job application... Children and families suffer when people with criminal histories are unable to work or work at jobs that are below their potential given their education and skills….

Ban the Box Reduces Systemic Racism

Including a criminal history question on an application often results in disparate impact discrimination. Because Latino and African American men are arrested and convicted at a higher rate than Caucasian men, an employment application asking about criminal history has a disproportionate impact on them.

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What do Existing Laws Look Like?

All ban asking about criminal history on applications.  Most prohibit performing a criminal background check until after the first interview or until after a conditional job offer.  The best laws, such as California’s “Fair Chance Act,” also prohibit employers from taking back a job offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job being sought (i.e., they can’t just automatically take back the job offer when finding someone has a record).  If the employer decides to deny employment based on a criminal record, it must provide the applicant with notice and an opportunity to provide mitigating evidence that lessens the impact of the conviction.  In Hawaii, employers may only inquire about felony convictions within the past seven years and misdemeanors within 5 years.  Seattle’s law applies to all companies with more than one employee (compared to 15 for most laws) and requires a legitimate business reason to automatically exclude applicants with arrest or conviction records.

Where is Texas?

While Texas has no Ban the Box state law, Austin does have one that forbids criminal background checks prior to conditional job offers.  14 states and Washington DC have Ban the Box laws at the state level that apply to all types of employers over a certain size.  9 more have city ordinances in one or more major municipality.  Over 30 states have laws applying to government employees.  Elijah Cummings Fair Chance Act was also passed at the federal level in 2019, banning the box for the world’s largest employer, the U.S. government.  That could not have happened without significant Republican support, up to and including the president.

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