Criminal Records and Ban-the-Box Legislation Still a Struggle

Pre-employment background screening incorporates criminal background checks into its process but Ban-the-Box legislation is changing the legal landscape.  Originally thought to help level the playing field for applicants looking for work ban-the-box has recently met criticism.

With the simple goal of eliminating the question of criminal history on job applications ban-the-box legislation has swept across the nation.  Proponents of this movement believe that this one question severely limits the fair and equal opportunity of all job candidates.  Currently the USA has the highest incarceration rates in the world, and more needs to be done to reintegrate past offenders into free society and eliminating the question of past criminal history it is believed would be a big step in achieving that end.

It is widely believed that recidivism is more likely if a previous offender is released back into society and cannot get a job.  Certain States and jurisdictions have their own laws that can limit how far back an employer can look into the past of an applicant’s criminal history.  This would definitely help applicants that have been out of prison for over 7 years or that have criminal background records over a certain time frame, but it wouldn’t help people that have just been released from prison or recently accumulated a criminal record that did not require prison time.  However, even with ban-the-box legislation the outcome in at least one study showed that employers may discriminate based on race when they can’t ask if the applicant has a criminal history.

Recent studies indicate that ban-the-box legislation may not be helping when it comes to race as a proxy for criminal history.

From the Nation Law Review (, Sep 09, 16):

New research by Amanda Agan, a Princeton economist, and Sonja Starr, a legal scholar at the University of Michigan, suggests that, at least in some cases, “ban the box” rules may result in the use of race as a proxy for criminal history. This may increase racial disparity in hiring– even in the absence of criminal histories. (1)

Troubling conclusions came from this research.

The racial gap in callbacks before the ban the box laws was 7% at companies that asked applicants about criminal history. After the laws were enacted, it went up to 45%, suggesting that black applicants were presumed to have a criminal past if the prospective employer was not permitted to inquire. (2)

Although this recent study shows clearly that in this area ban-the-box was not helping minorities and in fact making it even more difficult for them to obtain gainful employment.  At this time more studies are needed and the concerted goal of the EEOC, HUD and FCRA are determined to make it easier for past offenders to get employed and become productive citizens.  Also with the highest incarceration rates in the world it is imperative that we reevaluate past offenses especially those that were non-violent and help these people get their criminal records expunged and enter the employment market with a clean slate.

To read more about this subject read recent press release found here:

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