One of the trendiest phrases in fair hiring discussions is ‘structural discrimination.’ Its validity is somewhat similar to ‘disparate impact,’ a bit murky and debatable; nonetheless its popularity is gaining.

All of Us or None, the non-profit agency who credits itself with coining ‘Ban The Box,’ uses structural discrimination as its leading reason to eliminate questions about criminal convictions on employment applications. So far, nine states and more than 50 municipalities 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.

The definition of structural discrimination isn’t found on the Equal Employment Opportunity Commission (EEOC) website and it is used only in passing on the National Employment Law Project website. Where we do find it after extensive research, is on a website from New Zealand:

             “Structural discrimination (also referred to as indirect discrimination or institutional racism) refers to practices, norms and behaviours within institutions and social structures which have the effect of denying rights or opportunities to members of minority groups, keeping them from achieving the same opportunities available to the majority group. Structural discrimination can occur both intentionally and unintentionally. The term is also used in relation to more informal practices which have become embedded in everyday organisational life and effectively become part of the system, “how we do things around here.””

Ban The Box advocates argue structural discrimination exists when employers don’t allow applicants to reach the next step in the employment process (whatever that may be) because they checked ‘yes’ to a question about previous criminal convictions. Since the question is included on nearly every job application (except those states with Ban The Box laws) some people argue that structural discrimination is pervasive. They also say that it disproportionately affects some minorities because African Americans and Latinos/Hispanics are convicted of crimes at higher rates than other races.

There are still plenty questions, however, surrounding the necessity for, and validity of, Ban The Box movements as the benchmark for eliminating so-called structural discrimination. Employers, especially small businesses who don’t have HR departments or staffers, feel a question about criminal convictions is important to ask to avoid workplace safety issues, which we know leaves employers open to liability lawsuits. Furthermore, some employers feel pressure from Ban The Box advocates and the changing law landscape to eliminate background checks altogether. This is clearly not advisable for a number of reasons:

Q: Most laws like these don’t prohibit employers from running a background check so why is it important to eliminate a question about criminal convictions or arrests if it’s going to come up at some point in the hiring process anyway?

A: The idea is for all candidates to be judged on their qualifications first. Then, if a background check turns something up that an employer has questions about, they will be held to EEOC Guidance standards and compliance laws in how to handle the information. The hope is that employers will then ask the candidate about the arrest or conviction and take into consideration if it was/is job-related, how long it has been since it happened, and what they’ve been doing since.

Q: Some research has suggested that some employers make incorrect assumptions that most African American and Latino men have conviction histories, and that Ban The Box has nothing to do with structural discrimination. In fact, some people argue that laws like Ban The Box could have the reverse effect they were intended for – that more employers would use race or ethnicity as a proxy criminal history. Is this true?

A: In either of those proposed scenarios, discrimination is happening. So why not take any step we can to begin to eliminate it? Dealing with intentional discrimination by allowing disparate impact won’t work.

Q: Why is it hard for some businesses to simply eliminate this question from their applications?

A: There is a several reasons. One, many small businesses don’t have a dedicated Human Resource professional and already find it hard to keep up with all the changing employment laws. Don’t forget, there aren’t just federal laws to comply with but state and local laws. It’s a lot. Two, criminal record checks provide a necessary and very important component to the fair hiring process. They keep workplace safety a top priority and are used to treat everyone equally because they are used as part of a standard hiring protocol so it’s impossible to say that someone was treated different if everyone is given a background check and compliance laws are followed. Three, there are certain industries like child care and health care and transportation where it’s required by law to conduct criminal background checks. We don’t ever want this compromised by a one-size-fits-all policy like Ban The Box.

Do you have more questions about Ban The Box and how it could affect hiring procedures or structural discrimination? Send them our way and we’ll do our best to get you an answer!

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