Should Employers “Ban the Box”?


EEOC best practices suggests eliminating the criminal background questions from your application forms.

There are an increasing number of jurisdictions that are joining the “ban the box” movement, the most recent being the state of Delaware. The “ban the box” campaign is the movement to get the question about criminal convictions or history removed from all employment applications. My question is “Should employers ‘ban the box’?”
The EEOC has recommended as a “best practice” eliminating asking questions about criminal backgrounds in the hiring process. I wrote about this in EEOC Issues New Restrictions On the Use of Background Checks. If you are not up-to-date on this I would suggest you click through and read that post. In conjunction with this a number of public employers have adopted “ban the box”. Here is a chart of the various states that have adopted it as a whole or have jurisdictions within the state that have adopted it.
The EEOC’s statement and guidance is not law but private employers are “encouraged” to adopt their stance and to take out checking criminal backgrounds. After all, according to “…a recent National Employment Law Project (NELP) report, we estimated that 65 million Americans—or one in four adults—have a criminal record that may show up on a routine background check report.”
Opinions differ
I don’t know about you but that statistic is startling and has the effect of making me think that background checks are even more important than ever. According to a SHRM article written by attorney Allen Smith, attorneys are not necessarily eager to adopt the EEOC standard. Attorney Don Livingston thinks “…it is sound business practice to seek information at the outset of the application process that is important in screening applicants. This includes information about criminal convictions that are manifestly job related.” Job relatedness is a key term in any consideration of background checks. The EEOC is trying to clamp down on blanket bans on people with any criminal background.
Other attorneys think that employers should not be too hasty in removing that question from their applications. Some think employers should still ask the question but later in the interview process, thus making the question more job relevant and not such a blanket rejection. Some think the best approach is to limit the span of time on which the question is asked.
Best approach
One thing is certain, and I thought had been common practice, at least in larger companies is to make sure that any consideration you give to a criminal conviction should be related to the job for which you are hiring someone. As an example, an embezzlement conviction in the last six years would be relevant to hiring someone for an accountant position. If the conviction was 15 years ago, much less relevant. If there is a conviction for DUI it is not relevant at all for an accounting position.
If I were doing it myself here is what I might suggest. (Note: This is not legal advice, I cannot give that since I am not an attorney.)

  • Have an application “light” that asks for basic information and checks or minimum qualifications.
  • If you select a candidate from that pool have an application supplement that asks for further information, references and then asks the question on criminal background. Make sure you have a statement that says each conviction will be considered in relation to the job applied for, and mean it.

If you have a candidate with a criminal conviction make sure you consider the nature of the conviction and the time frame of the conviction. If you are considering a candidate that is 45 years old and they have something on their record at age 25 with nothing since then it is irrelevant.
Would you?
The purpose of the movement is to allow people to recover their lives and become productive citizens. Would you be willing to give them a chance? Have you? I know some small business owners who have said “I have the obligation to protect all my employees and I don’t want anyone with a criminal record.” How do you feel about that?

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