‘Ban-the-Box’ Legislation Clears Senate Committee Unanimously

By Allen Smith Oct 19, 2015
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A criminal history can be tough to overcome when seeking employment.

That’s why 19 states and more than 100 cities and counties have enacted “ban-the-box” legislation. These laws prohibit the use of check boxes on job applications to indicate whether job candidates have any criminal convictions. However, only seven state laws—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—cover private employers.

Now momentum is building in Washington, D.C., for similar legislation at the federal level, according to Maurice Emsellem, director of the Access and Opportunity Program with the National Employment Law Project. (Headquartered in New York City, this national organization advocates for the employment rights of lower-wage workers.)

On Oct. 7, 2015, the Senate Homeland Security and Governmental Affairs Committee voted unanimously to approve the Fair Chance Act (S. 2021). The bipartisan legislation would ban federal agencies and federal contractors from asking job applicants to disclose criminal histories before making conditional job offers.

Getting inquiries about criminal convictions delayed until after a job offer has been made tees up cases for litigation under Title VII of the Civil Rights Act, as it currently is difficult to show why a job was denied. Now an employer may argue it was because another candidate was more qualified or that it didn’t like how a former convict answered questions during the job interview, explained Kevin Simon, an attorney with Fisher & Phillips in Chicago.

Companies such as Bed, Bath & Beyond, Home Depot, Koch Industries, Target and Wal-Mart already have adopted policies similar to the Fair Chance Act.

“The biggest challenge for employers is complying with the patchwork of requirements,” Angela Preston, vice president of compliance and general counsel at Employee Screen IQ, a background and substance abuse screening provider based in Cleveland, told SHRM Online. Different localities require different notifications to be sent and different forms to be used, she said. For example, San Francisco has a special notice.

“It’s time to move this to the next level and try to get some standardization,” Preston remarked, expressing her hope that the federal legislation, if enacted, would preempt local ordinances and state laws.

But Emsellem said the bill would not preempt state and local laws. “The state and local laws are not specific to federal contractors,” he remarked. “Like many civil rights laws, the idea is that the federal law creates a floor that state and local laws can build on.”

‘Dignity of Work’

“The dignity of work is one of the best ways we can keep people from turning back to a life of crime,” said committee Chairman Ron Johnson, R-Wis., one of the bill’s co-sponsors. “This makes our communities safe, keeps families together and makes people less dependent on the government.”

Sen. Cory Booker, D-N.J., another co-sponsor, said, “The committee’s passage of the Fair Chance Act today is a testament to the growing bipartisan support for reforms that break down barriers to hiring people who’ve paid their debt to society and are looking to turn their lives around.”

Over 70 million Americans have criminal histories, according to a joint statement from Johnson and Booker. A criminal record reduces the likelihood of a callback or job offer by nearly 50 percent for men—60 percent for black men, the statement added.


The bill includes exceptions on banning the box for positions:

  • Relating to law enforcement and national security.
  • Requiring access to classified information.
  • Involving interaction with minors.

The director of the Office of Personnel Management, secretary of defense and administrator of general services would issue regulations identifying positions that wouldn’t be protected by the law.

Call for an Executive Order

Congressional action isn’t the only avenue for banning the box at the federal level.

Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights, last month called on President Barack Obama to issue an executive order banning the box on job applications for federal agencies and contractors. “It’s time for him to give millions of Americans a second chance and a fair chance at employment and opportunity,” Zirkin said.

Her plea was similar to one made earlier this year by nearly 200 worker advocacy groups and labor unions urging executive action banning the box for federal contractors.

EEOC Guidance

In addition, the Equal Employment Opportunity Commission (EEOC) has cautioned employers about the use of criminal background checks.

“National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” the EEOC has stated in its Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. “The national data provides a basis for the commission to investigate Title VII disparate impact charges challenging criminal record exclusions.”

Even when an employer is not motivated by discriminatory intent, Title VII prohibits the employer from using a neutral practice that has an unjustified adverse impact—a “disparate impact”—on members of a protected class.

The EEOC added, “A policy or practice that excludes everyone with a criminal record from employment will not be job-related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.” In other words, blanket prohibitions on hiring anyone with a criminal conviction are prohibited.

The EEOC requires any employer making an employment decision based on conviction records to consider the following three factors to show that the decision is job-related:

  • The nature and gravity of the offense.
  • The time that has passed since the conviction and/or the completion of the sentence.
  • The nature of the job held or sought.

The EEOC recommends that employers conduct this assessment before informing an applicant that he or she is being eliminated from consideration due to a criminal conviction. It also recommends providing the applicant with the opportunity to respond so that the employer can consider extenuating circumstances before making a final decision.

The EEOC does not prohibit employers from including a question about criminal convictions on job applications, but the agency does recommend that employers refrain from including it.

The EEOC guidance does not have the force of law though, noted Simon. It’s just a suggestion made in the context of Title VII litigation.

Some employers may comply with the EEOC’s ban-the-box suggestion, observed Rachel Reingold Mandel, an attorney with Ogletree Deakins in Boston. “The trend of prohibiting criminal history inquiries early in the employment application process is continuing to spread across the country,” she remarked.

Federal contractors may adopt the ban-the-box policy voluntarily because of other legal obligations, Emsellem indicated. “Given the disproportionate impact of background checks on people of color, ban the box helps federal contractors comply with their affirmative civil rights obligations under federal law,” he said.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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