“Ban the box” laws limit an employer’s ability to ask a job applicant about his or her criminal background as part of the hiring process. In 1998, Hawaii became the first state to adopt a ban the box law. Since then, a number of states and municipalities have passed similar laws.
The policy goal behind ban the box laws is to give individuals with criminal histories a fair opportunity to compete for jobs. Removing conviction history questions from job applications allows employers to judge applicants based on their qualifications first, rather than their criminal histories. Because employment has been found to be a significant factor in reducing re-offending, ban the box laws also help promote stable communities.
In general, states with ban the box laws do not completely prohibit employers from asking about an individual’s criminal background or conducting a criminal background check. However, employers are typically prohibited from doing so until later in the hiring process as part of a conditional job offer.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The guidance states that an “employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.”
Under federal law, an employer’s use of criminal history information may violate Title VII in two ways.
- First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex or national origin. This is disparate treatment discrimination.
- Second, even when an employer applies criminal record exclusions uniformly, the exclusions may still cause a disproportionate and unjustifiable exclusion of individuals of a particular race or national origin. This is disparate impact discrimination.
If the employer cannot show that an exclusion is “job related and consistent with business necessity” for the position being considered, the exclusion is considered unlawful under Title VII.
Title VII does not regulate when or how an employer might acquire a candidate’s or employee’s criminal history information. However, the Fair Credit Reporting Act establishes procedures that employers must follow when they obtain criminal history information through a third-party consumer reporting agency. In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.
As of August 2018, 32 states have passed ban the box legislation for public employers. Eleven states have adopted laws for private employers. The table below lists the states that have enacted ban the box laws and includes general information about the provisions that apply to private employers in each state.
|State||Employers: Private or Public||General Requirements for Private Employers||
|Arizona||Public||Executive Order 2017-07|
|California||Private (Eff. Jan. 1, 2018) & Public||Must delay any conviction background check and any questions about or consideration of an applicant’s conviction history until after extending a conditional offer of
|California Fair Chance Act (Effective Jan. 1, 2018);
Cal. Lab. Code § 432.9
|Colorado||Public||Colo. Rev. Stat. § 24-5-101|
|Connecticut||Private & Public||May not include questions about an applicant’s prior arrests, criminal charges or convictions on an initial employment application.||Connecticut Fair Chance Employment Law|
|Delaware||Public||Del. Code tit. 19, § 711(g); Del. Code tit. 29, § 6909B|
|Georgia||Public||Executive Order 02.24.15.01|
|Hawaii||Private & Public||Must delay any conviction background check and any questions about or consideration of an applicant’s conviction history until after extending a conditional offer of employment.||Haw. Rev. Stat. § 378-2.5|
|Illinois||Private (15 or more employees)||Must delay any criminal record inquiries until after an applicant has been selected for an interview or has received a conditional offer of employment.||Illinois Job Opportunities for Qualified Applicants Act|
|Indiana||Public||Senate Bill 312|
|Kansas||Public||Executive Order 18-12|
|Kentucky||Public||Executive Order 2017-064|
|Louisiana||Public||La. Rev. Stat. Ann. § 42:1701|
|Maryland||Public||Md. Code Ann., State Pers. & Pens. § 2-203|
|Massachusetts||Private & Public||May not ask about criminal offender records on an initial, written job application. May not ask about certain arrests or convictions.||MGLA 151B §4; MGLA 6
|Minnesota||Private & Public||May not ask about, consider or require disclosure of criminal history until after applicant has been selected for an interview or has received a conditional offer of employment.||MN § 364.021|
|Missouri||Public||Executive Order 16-604|
|Nebraska||Public||Neb. Rev. Stat. § 48-202|
|Nevada||Public||Assembly Bill 384|
|New Jersey||Private & Public||Must delay any questions about applicant’s criminal record until after the conducting a live, direct-contact interview for employment. May not publish job advertisements that exclude applicants based on arrest or criminal conviction.||New Jersey Opportunity to Compete Act; N.J.S.A § § 34:6B-11 to 19|
|New Mexico||Public||N.M. Sta. §§ 28-2-1 to 28-2-6|
|New York||Public||Executive Action|
|Oklahoma||Public||Executive Order 2016-03|
|Oregon||Private & Public||May not require applicant to disclose a criminal conviction on an employment application or any time prior to conducting an initial interview.||House Bill 3025|
|Rhode Island||Private & Public||May not make any oral or written inquiries about whether applicant has ever been arrested, charged with or convicted of any crime until during or after conducting a first job interview.||Rhode Island Fair Employment Practices Act|
|Utah||Public||House Bill 156|
|Vermont||Private & Public||May not request criminal record information on initial
employment application form or any time before applicant is interviewed or deemed otherwise qualified for a position.
|21 V.S.A. § 495j; Executive Order 03-15|
|Virginia||Public||Executive Order 41|
|Washington||Private & Public||Must delay conviction record inquiries and background checks until after determining an applicant is otherwise qualified for the job.||Washington Fair Chance Employment Act|
Please note that, in addition to state laws, municipal requirements may also apply. Over 150 cities and counties have enacted similar laws.
Understanding employment regulations like ban the box helps employers remain in compliance. If you have any questions about ban the box, employee background checks or any other human resources issues, contact us at email@example.com or 1-800-748-5102.