Hiring Without the Box

In July 2013, Erick Little received a contingentjob offer from the Washington (D.C.) Metropolitan Area Transit Authority as a bus driver. The job was his as long as he passed his background check.

During the job interview, Little disclosed a 27-year-old drug conviction, and his interviewer told him the agency wouldn’t hold his record against him when considering him for employment. After the background check, though, Little’s job offer was rescinded.

According to Little, who is black, the transit authority’s background screening policy is overly broad and has a negative effect on the hiring chances for black applicants. Little joined a class action lawsuit with eight other black plaintiffs against the authority in July 2014, which challenges the legality of the agency’s background screening policies.

“I’m joining this lawsuit to send the message that it is never too late to make things right — that if you work hard and do the right thing — you deserve a chance to build a good life for yourself and family and to be a contributing member of the community,” Little said in a statement.

Background checks are not illegal, but an employer can use the reported information in a way that could potentially violate Title VII of the Civil Rights Act of 1964. The U.S. Equal Employment Opportunity Commission issued guidance in 2012 to control the negative effect background checks could have on minority groups protected under Title VII — including suggestions that fall under the so-called “Ban the Box” movement, which asks that employers consider the age of the offense and its relevance to the job.

The Ban the Box movement is one recent “fair-chance hiring” trend that seeks to limit the disparate effect criminal convictions have on job applicants by removing the section of an application where job candidates indicate if they have been convicted of a crime by a court of law. Ban the Box laws and other fair-chance hiring policies have potential to have a positive effect on workplace diversity, as minority populations face higher rates of incarceration in the United States compared with whites, according to the EEOC.

Ban the Box laws are designed to provide job candidates with a conviction record with more opportunities to be evaluated on their skills and experience when they apply for positions with private employers.

Since 1998, states, counties and othermunicipalities across the U.S. have passed legislation to Ban the Box on job applications.

The movement took a little more than a decade to gain significance in the political world. By 2011, only three jurisdictions — Hawaii, Massachusetts and Philadelphia — had enacted Ban the Box legislation. It’s fair to say the movement has exploded since 2011. As of September 2014, 69 cities and counties have removed the box regarding criminal history, and 13 states have made it illegal for public and private employers to include it on job applications, according to the National Employment Law Project, or NELP.

The Ban the Box movement continues to gain momentum as more state and local governments pass laws making it illegal for those boxes to appear on job applications every year. It has even gained acceptance with some large companies, like Target Corp., which removed the criminal convictions box from applications regardless of store location.

Target did the “right thing by reforming its hiring policies so that qualified job applicants aren’t automatically screened out simply because they have an arrest or conviction from the past,” said Christine Owens, executive director of NELP, in a written statement. “Other large retailers around the nation need to follow suit, because their hiring policies send a strong message about whether they are committed to the communities that support their business.”

According to NELP, if hiring discrimination takes place, it is likely to occur after the submission of a job application, typically the first point of interaction between an employer and a candidate. Applicants who indicated they have a criminal record on their application are less likely to get a call back for an interview than those who don’t. Some 34 percent of white applicants without a record were called for an interview, compared with 17 percent who did. Among black applicants without a record, 17 percent received a callback, while only 5 percent of those with a record did.

With the criminal conviction box becoming increasingly endangered, job searchers may have a better chance of landing a job interview and the chance to explain their skills to a future employer. Yet job applicants with criminal records still face the possibility of employer discrimination in background checks.

Discriminatory Hiring Practices

For many people, a job interview is the most stressful part of the hiring process. Likewise, for most job seekers, a background check is merely a waiting period with a different name that comes between the interview and the first day on the job.

But for a significant amount of Americans, especially blacks and Latinos, this isn’t always the case.

NELP statistics show 1 in 4 Americans has either an arrest or conviction on their record.

However, according to the EEOC, arrest and incarceration rates are particularly high for black and Latino males. Black and Latino people are arrested at a rate that is two to three times their proportion of the general population. If current incarceration rates do not change, about 1 in 17 white men are expected to serve time in prison during their lifetime; whereas, this rate climbs to 1 in 6 for Latino males and to 1 in 3 for black men.

As a result, a hiring process that includes background checks has the potential to disparately affect black and Latino people.

“There are two generally accepted ways to prove discrimination. First is called disparate treatment, where somebody says, ‘I’m sorry, we don’t hire women to do construction.’ That’s obvious motive to discriminate,” said Justine Lisser, an EEOC spokeswoman. “The other form of discrimination is called disparate impact. That’s where an employer imposes a neutral rule that in and of itself that does not show any discriminatory intent, but in its application affects one protected group much more than another.”

Background checks policies are “neutral policies” that can often lead to disparate impact discrimination. If an employer’s policy is accused of being discriminatory, the employer is required show that the background screening was job related and there was not a less discriminatory alternative, Lisser said.

By removing the criminal convictions box, an employer must evaluate a job candidate as an individual and on his or her merits. A background check is still legal in locations whose governments have eliminated that section on applications, but if a conviction is discovered, the employer must consider the nature of the crime and if it applies to the open position, the time passed since the conviction, and the individual’s behavior during that time. The employer must also determine if the conviction conflicts with business necessity.

For example, if somebody with a recent fraud conviction applies for a job working with personal identifiable information like Social Security numbers, the employer can decide to hire a different candidate because the prior conviction is job-related.

Background checking policies need “to be narrowly tailored, and you have to look at the individual in front of you instead of making blanket rules,” Lisser said.

The EEOC believes its guidance is necessary to control the negative effect background checks could have on minority groups protected under Title VII of the Civil Rights Act of 1964.

Greg Dubecky, president of background screening company Corporate Screening, agrees that background checks “could have disparate impact or disparate effect on protected classes under EEOC.”

Lisser said employers will have the best chance at avoiding discrimination lawsuits and defending against them if they have a written background checking policy that diligently follows the guidance provided by the EEOC, as well as the laws regulating the process under the Fair Credit Reporting Act.

It’s not unusual for a company to have no written policy for background checks, Dubecky said. “You’d be amazed at how many say, ‘Well, we don’t have one.’ These are Fortune organizations in some cases. That’s pretty alarming,” he said.

Dubecky said among the best ways an employer can stay out of legal trouble is to follow the EEOC’s guidance and eliminate early background checks. Some state and local governments are taking the Ban the Box movement one step further by making it illegal to conduct background checks in the early stages of the hiring process.

Last July, former Illinois Gov. Pat Quinn signed a law preventing criminal background checks before an applicant has gone through the interview process. The law took effect Jan. 1 and covers private employers with 15 or more employees. In the same month, the Council of the District of Columbia unanimously approved a law prohibiting private employers from inquiring about a job candidate’s conviction record until after a conditional job offer. Mayor Vincent Gray is expected to sign the legislation into law, but a potential wrinkle is that it must also pass congressional review.

Business Benefits

Banning the criminal conviction box allows job applicants to have personal contact with a potential employer, and it lets that person lend context and perspective on their offense and their time since.

According to NELP, time is a strong predictor of future criminal activity. Among those who did not commit another offense in the first 10 years after release, only 3.3 percent were reconvicted in the next 10 years. Further, the number of formerly incarcerated people who returned to prison peaked at 10 months since release, and the risk ofrecidivism halved every 10 months thereafter.

The state of Minnesota not only sees the Ban the Box movement as a way to try to eliminate discriminatory hiring practices, but as a way to also fill open positions in light of a U.S. workforce that shrinks daily.

One study conducted by The Urban Institute, a justice policy and research center in Washington, D.C., found employers who have given workers with a criminal record a chance at employment believe them to be valued employees.

According to the same study, eight months after release from prison, 80 percent of employed former convicts said that their employers knew of their criminal record and were satisfied with their job performance.

NELP’s Lisser made sure to emphasize that employers consider the job applicants’ merits and not simply their past criminal record.

“Employers need to make an individualized assessment of the individual,” Lisser said. “And when they make that assessment they should take into account the factors I mentioned: nature of the crime, the offense, the time that’s passed, the job in question, the person and their behavior since then.”

To learn more about the best practice for fair-chance policies, read the sidebar that accompanies this feature here.