Halfway through 2014, debates and discussions about employment law show no signs of slowing down.
Sure, there are more pressing issues getting the bulk of national news coverage these days – Israel vs. Hamas, migrant influx into, and deportation from, the U.S., women’s freedom to contraception – but employment law is something that directly affects all of us (yes, even if you’re in between jobs, unemployed, choosing not to work or incarcerated).
Specifically, criminal background checks are taking a lot of heat in Washington. Lawmakers, corporations, non-profit groups and regular Joe’s alike are taking a close look at the Ban The Box movement. Spearheaded by All of Us or None, Ban The Box wants to eliminate questions about criminal convictions from job applications. Ban The Box advocates claim that asking questions about criminal convictions is discriminatory. Essentially, they want to keep the past in the past.
Considering that the National Employment Law Project estimates 70 million Americans – or one in four adults – have a criminal record that may show up in a background check, it’s important to understand the basis for Ban The Box.
We’ve given you clues on our Active Care blog that this was coming:
“A major issue for hiring managers in 2013 was the ‘Ban the Box’ movement. The movement’s purpose is to stop discrimination in the workplace by removing questions about criminal convictions from employment applications. It began in 2004 and has recently gained popularity since the EEOC made it a “prohibited practice” to use an arrest record to prevent a candidate from getting a job. Minnesota and Target were the first to take a stand on the issue and now over 45 cities and seven states recognize ‘ban the box’. As some states embrace the movement others like Texas are fighting it, what does this mean for employers? Going into 2014, be sure to check your city and state laws and if needed alter your policy to reflect them.”
Nine states and more than 50 municipalities now recognize Ban The Box reforms. In the first three months of 2014, 11 cities and counties across the nation adopted these policies emphasizing an applicant’s qualifications rather than his or her past mistakes, such as Louisville, New Orleans, and Indianapolis. Many of these governments used the theory of disparate impact as the launching point for introducing Ban The Box measures but there are arguments against the validity of this statistically backed theory.
An excerpt from this post explains:
“Some say the practice of using criminal background checks disproportionately affects minorities chances of getting jobs since minorities are convicted of crimes at higher rates than non-minorities. Called disparate impact, it exists when an employer has a policy or practice that has a discriminatory effect on theses protected classes:
- race, sex, religion, genetic information, disability, color, national origin, citizenship, age, pregnancy
- some states also offer protection for sexual orientation, weight, marital status
However, disparate impact is a theory based on statistical analysis. Someone can be accused of disparate impact even if they had no intention of mistreating minorities or other protected classes.”
Under pressure from Ban The Box advocates, the Equal Employment Opportunity Commission (EEOC) even retooled the arrest and convictions portions of its hiring Guidance:
- Employers should only consider convictions if they directly relate to the job responsibilities
- Conduct an individualized assessment to determine how likely a person is to offend again
This last point can be a dangerous situation for employers though because there isn’t any standardized assessment an employer can rely on – they have to create their own. And if the individualized assessments are conducted differently, that could later be interpreted as discriminatory. This is one of the reasons some businesses feel the EEOC Guidance is too confusing to even follow.
Discussions about so-called fair hiring procedures will continue to heat up throughout the rest of 2014. What’s your take on Ban The Box? We’d love your feedback – it will help us keep generating fresh, interesting and informative content. We like nothing better than hearing from our readers so we know we’re staying on the pulse of what’s important to you!