Ban the Box is a modern civil rights movement advocating for the passage of laws throughout the country designed to protect individuals involved with the criminal justice system from unfair and systematic discrimination based on their criminal history. The principal aim of Ban the Box is the passage of laws removing the checkbox asking if applicants for work have a criminal record on hiring applications. Often, Ban the Box laws regulate when and how an employer can consider this information, and some Ban the Box laws provide penalties for applicants who suffer a civil rights violation.
In 1998, Hawaii became the first jurisdiction to pass a Ban the Box law. Recognizing the critical role Ban the Box laws play in ameliorating the disastrous mass incarceration’s disastrous repercussions, Ban the Box laws have spread to numerous states, counties, and cities, including California, San Francisco, Boston, Los Angeles, Sacramento, Austin, Santa Clara County, Alameda County, Oakland, New York, Pennsylvania, and Arizona. As of 2019, 35 states and over 150 cities and counties have enacted Ban the Box laws throughout the country, which protect more than 258 million people.
In 2015, President Obama directed all federal agencies to “Ban the Box” and refrain from asking applicants about their convictions on the initial job application. Signed in December 2019, a federal ban the box will take effect in December 2021 prohibiting the federal government and its contractors from asking applicants about criminal history before extending a conditional offer of employment.
Most Ban the Box laws exempt security and law-enforcement positions, as well as positions that require work with children and the elderly.
In addition to forbidding inquiries about criminal history before extending a conditional job offer, Ban the Box laws routinely regulate the when and how employers evaluate applicants with criminal histories. Employers cannot ask about an applicant’s criminal history during an interview occurring before a conditional offer for employment. For example, California’s Ban the Box law prohibits employers from examining an applicant’s criminal history until after extending a conditional job offer. If the applicant has a criminal record, the employer is required to perform an individualized assessment and may not deny employment unless justified by the assessment.
Ban the Box laws may cover public and private employers or just public employers. Nine states, including California, and 15 cities, including San Francisco and Los Angeles, which cover both public and private employers.
Particular Ban the Box laws provide for penalties for an employer’s violation of the law, including San Francisco’s Ban the Box law.
In 2012, the Equal Employment Opportunity Commission (“EEOC”) expressed concern that criminal background checks on applicants for employment could be discriminatory due to a disparate impact on minatory groups. According to the EEOC, “[w]ith respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.” Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The EEOC subsequently released a guidance setting forth best practices for conducting criminal history checks on applicants for employers. In 2016, California’s Fair Employment & Housing Council issued a similar guidance – providing further clarity on Ban the Box Laws – entitled “Consideration of Criminal History in Employment Decisions Regulations.” The guidance set forth several proposed regulations intended to protect applicants with criminal records.
Ban the Box laws not only benefit applicants with criminal histories but also their families and communities. Employment reduces the risk of re-offending, increases tax contributions, stimulates the local economy by keeping money out of the criminal justice system, and undoes the disastrous effects of mass incarceration. Further, Ban the Box laws help stem employment discrimination, help children, and improve public safety. Additionally, experts have found that personal contact with potential employees reduces the negative stigma associated with a conviction by approximately fifteen percent. Ban the Box laws are so effective that many major private employers, including Walmart and Target, initiated nationwide Ban the Box policies on their own.
Ban the Box laws are necessary because over 76 percent of hiring discrimination occurs during the initial hiring process. Devah Pager, The Mark of a Criminal Record, 105 Am. J. Soc. 937, 948 (2003). One study found that an employer’s knowledge of an applicant’s criminal record reduced the likelihood of a callback by at least 50 percent. Devah Pager & Bruce Western, Nat’l Inst. Justice, Investigating Prisoner Reentry: The Impact of Conviction Status on the Employment Prospects of Young Men 4 (2009).
Ban the Box laws can contain a private right of action, which empowers applicants that suffer a Ban the Box violation to sue in court. When a Ban the Box law lacks a private right of action, the aggrieved employee is restricted to filing an administrative complaint at an appropriate government agency. Although there is sparse case law providing guidance, Ban the Box laws are clear. Employers must not consider an applicant’s criminal history until after extending a conditional offer of employment. Once an employer learns of criminal history, it cannot treat the applicant unfairly and unlawfully.