Workest HR Glossary B Ban-the-Box

Definition of Ban-the-Box

Ban-the-Box

“Ban-the-box” is a term for laws prohibiting questions about a job applicant’s past convictions. The word “box” refers to check boxes on application forms that employers expect applicants with a criminal conviction to mark.

What is ban-the-box?

State and local lawmakers passed ban-the-box or “fair chance” laws to address discrimination in hiring against ex-felons and former incarcerates. These laws are intended to:

Currently, 37 states and the District of Columbia have some type of ban-the-box law. Of those states, 13 extended their laws to incorporate private employers.

Across the U.S., 150 cities and 18 counties opted to have ban-the-box ordinances, even though some were in states without ban-the-box laws. About 258 million people in the U.S. now live in ban-the-box jurisdictions.

Why ban-the-box is important to your business

Ban-the-box provisions vary somewhat across jurisdictions. Most apply to public employers, although, in some instances, some states have extended their statutes to cover private employers. And some laws apply to employers based on their company size.

A common stipulation is that employers conduct background checks only after making a job offer. This may lower the chance of applicants being eliminated from the hiring process too early.

A common stipulation is that employers conduct background checks only after making a job offer.

Are you wondering what the associated penalties for ban-the-box noncompliance are? The EEOC has prosecuted employers with blanket ban policies on hiring ex-incarcerates. In 2012, it won a $3.13 million lawsuit against Pepsi Beverages for conducting background checks using discriminatory practices based on race.

Federal ban-the-box protections

There aren’t current federal ban-the-box laws like those that states and municipalities have passed. However, the U.S. Equal Employment Opportunity Commission (EEOC) has antidiscrimination policies to protect jobseekers with past convictions.

History of ban-the-box

In December 2019, Congress passed the Fair Chance to Compete for Jobs Act of 2019 as part of the National Defense Authorization Act. Effective in December 2021, the “fair chance” law bars most federal agencies and contractors from asking for information on ex-felons’ arrest and conviction records before making applicants a job offer.

In April 2012, the EEOC updated and clarified the guidance, following research and testimony by ban-the-box advocates in organizations across the country. The commission upholds ban-the-box initiatives through the Enforcement Guidance on Consideration of Arrest or Conviction Records in Employment Decisions.

Federal orders

In November 2015, President Barack Obama directed federal agencies to delay looking into job applicants’ histories until later in the hiring process. Ban-the-box advocates viewed this move as an endorsement of the movement.

The National Employment Law Project (NELP) has a fact sheet detailing the “fair chance” law’s provisions.

How ban-the-box started

A national civil rights movement of ex-incarcerated people and their families, called All or None of Us, kicked off the ban-the-box campaign in 2004. The campaign followed a series of Peace and Justice Community Summits, which identified discrimination in housing and employment against former felons as barriers to their return to the community after serving time.

The campaign challenges stereotypes about former incarcerates by encouraging employers to hire their best candidates based on qualifications and skills, not on whether they have a past conviction.

The first phase of the ban-the-box campaign focused on public employers, predominantly government agencies. Since 2004, All or None of Us has published a list of creators of ban-the-box campaigns, including:

  • Ex-incarcerates
  • Re-entry service providers
  • Its civil rights partners
  • Elected officials
  • Legal aid organizations

 Ban-the-box facts

According to the World Population Review, 30% of adult Americans have a criminal history. Therefore, a large number of job seekers who affirm their past convictions by “checking the box” on applications could be denied job opportunities in locations without ban-the-box laws.

Here are more statistics on criminal justice and employment in the U.S:

Criminal justice data

  • More than 2.2 million people are in jail or prison in the U.S.
  • About 95% of incarcerated people across the nation are eventually released into local communities.
  • Nearly 50% of Black males and 40% of white males are arrested by age 23.
  • As of 2007 statistics, more than half of incarcerates had children under 18.
  • The number of Americans with criminal records is about the same as the number of Americans with four-year college degrees.
  • Although African Americans and white people use illegal drugs at the same rate, African Americans are arrested for drug use much more often and in greater numbers than whites.

Criminal records and employment

  • Steady employment is critical to keeping ex-incarcerates from becoming repeat offenders.
  • A criminal record reduces the likelihood of someone receiving a recruiter’s callback or a job offer by as much as 50%.
  • White men with a criminal record are more likely to be interviewed for a job than Black men without a criminal record.
  • Joblessness for the millions of people with criminal records costs America $78 to $87 billion annually.

The question is whether ban-the-box laws will improve these statistics and generate mutually beneficial employment relationships between employers and former incarcerates.

Hiring considerations

Here are questions employers should consider if they’ve made a job offer and discover during a background check that a candidate has a criminal history:

  • Is the criminal history directly related to the nature of the job?
  • Can any aspect of the crime interfere with the candidate’s ability to do the job?
  • Has the candidate been hired for a similar position since the conviction?
  • How long ago was the sentence?
  • How many convictions are on the candidate’s record?
  • Are there strong character and employment references that the candidate can provide?

Employers can refuse to hire ex-convicts for jobs in:

  • Law enforcement, security, or wherever firearms are sold.
  • Bars, liquor stores, or where liquor is sold if the crime involved alcohol use.
  • Banks or financial institutions if theft or a money-related offense occurred.

Companies can use the questions and information on hiring restrictions to make careful and sound employment decisions.

Complying with ban-the-box

As more states and municipalities adopt ban-the-box laws, employers need to know how to navigate these laws to be compliant.

One Source, a background-checking company, recommends that employers comply with the law by consulting legal counsel. A legal representative will:

  • Review a company’s profile, location, industry, and public or private status to see which ban-the-box laws might apply.
  • Ensure questions about candidates’ criminal history don’t surface too early in the hiring process.

The EEOC offers tips to help small businesses avoid discriminatory hiring practices targeting people with past convictions.

Other terms similar to ban-the-box that can assist you

Summary of the definition of ban-the-box

State and local ban-the-box laws prohibit employers from asking about a person’s criminal history on job applications. Most laws also bar employers from looking into applicants’ backgrounds until after they make a job offer.

Ban-the-box aims to give people with past convictions a fair chance at landing a job without being discriminated against, passed over, or dismissed early in the hiring process.

Finally, employment specialists agree that conducting background checks on all candidates is a crucial part of the hiring process. One Source recommends that employers update their background-checking procedures, including their policies on disclosing and authorizing information, sourcing quality data, and handling adverse action from candidates.

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