How Ban the Box and Employee Background Checks Impact Hiring

“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.

Federal Law

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.

State Laws

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.

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 humanresources@helpside.com or 1-800-748-5102.