The National Trend Toward “Ban The Box”

Recent legislative and regulatory actions by states and municipalities, and new efforts by the EEOC, are restricting consideration of criminal records in the hiring process. Inside counsel and HR staff need to be aware of these changes and ensure that their hiring processes comply with federal, state and local statutes. These have been dubbed “ban the box” laws because they prohibit the employer from including a “box” on their application and requiring that the applicant check it if  he or she has a criminal record.

One type of restriction seeks to regulate the process by which an employer may obtain information regarding an applicant’s criminal record. For example, it may prohibit employers from asking an applicant about his or her criminal history, or performing a background check, until the applicant has either been selected for an interview or extended an offer of employment contingent on the background check.

Other types of restrictions allow consideration of a conviction at any point in the process, but allow denial of employment only if its based on particular criminal convictions.

EEOC guidance issued in April, 2012, states that consideration of an applicant’s arrests, pending charges and criminal convictions can be a violation of the rights of Hispanic and African American men under Title VII of the Civil Rights Act of 1964. The EEOC has taken the position that employers should consider an applicant’s criminal record when making a hiring decision only under certain limited circumstances.