Employers have a responsibility to ensure a safe workplace for all of their employees. They also have a responsibility not to discriminate when hiring. But now employers are dealing with a new issue that affects both their ability to hire qualified applicants and maintain a discrimination free hiring process.
“Ban the Box” is a campaign by advocates for criminal offenders who wish to persuade employers to no longer ask applicants if they have a criminal record. The campaign takes its name from the check box that has historically appeared on most American job applications, “Have you ever been convicted of a crime?” Advocates hope that persuading employers to no longer ask applicants about former criminal convictions will give ex-offenders the chance to display their job-related qualifications prior to a criminal background check being run.
Since the economic downturn of 2007, the “Ban the Box” campaign has gained popularity and spread to 17 states. The rise of the Ban the Box campaign coincides with the 2007 recession because the recession made even basic jobs extremely competitive due to the shortage of positions. In addition, after September 11, 2001, background checks became extremely common for all hiring, whereas before 9/11 background checks were not often done for basic, entry-level jobs.
It has long been known that recidivism, or relapsing into criminal behavior is a major problem for criminal offenders. Once one starts a life of crime, it is very difficult to get back on track and live a normal life as productive member of society. Civil rights advocates argue that anything that makes it more difficult for ex-offenders to find a job will contribute to their return to crime, which overall is bad for society. Advocates also argue that more Americans that ever have criminal records and since most of the offenses are not job related, they should have no direct bearing on an applicant’s fitness for a job.
Ban the Box forces more government legislation into hiring policies and exposes employers and their customers to potential crime. In addition, employers are now at greater exposure to discrimination lawsuits from unsuccessful applicants. For a hypothetical example, an ex-offender applicant with no interest in becoming a bank clerk and little to no qualifications could apply for a position as a bank clerk and then sue the bank for discriminating against him by disqualifying him for his criminal history. This is one of the types of abuses that employers fear having to defend themselves against. It should be of no surprise that there has been a rise in the number of discrimination claims on all fronts since the 2007 recession. Age discrimination, disability discrimination, and racial discrimination claims have all seen increases. It is only a matter of time before employers with deep pockets are targeted by unethical applicants.
Sources: Rise in Age Discrimination claims
“With leaders of the U.S. Equal Employment Opportunity Commission warning yesterday that the American workforce faces “an equal opportunity plague” of age discrimination, workers’ advocates urged commissioners to support new federal protections.”
Rise in Disability Discrimination claims
Rise in Racial Discrimination claims
“Workers themselves argue that a poor job market has brought out the often hidden prejudicial side of employers who can afford to be especially picky in selecting employees. Women believe they are being passed over in favor of men, blacks believe whites and Hispanics are taking their jobs, and older workers say fresher faces are having better luck in the job market at the expense of their elders.”
“The Equal Employment Opportunity Commission (EEOC) will not go out of business. Charges of racial discrimination and sexual harassment have increased every single decade since Title VII was passed in 1964. The statistics are chilling: Sexual harassment charges increased 146 percent between 1992 and 2001. They have increased 150,000 percent since 1980.”
On September 10, 2015, two bills were introduced simultaneously in the Senate and House of Representatives, S. 2021 and H.R. 3470. These bills would make it illegal for the majority of federal contractors to ask a job applicant about their criminal history before the applicant has received a job offer.
- 2021: https://www.congress.gov/bill/114th-congress/senate-bill/2021/
H.R. 3470: https://www.congress.gov/bill/113th-congress/house-bill/3470
These proposed laws expand upon the Equal Employment Opportunity Commission’s 2012 Enforcement Guidance with regards to the use of criminal convictions in hiring decisions.
According to the EEOC, because certain minorities are more likely to have been arrested and convicted of a crime, those minorities will thus be disproportionally impacted by an employer who excludes all applicants with a criminal record. The EEOC asked that employers instead consider “the nature of the crime, the time elapsed, and the nature of the job” before determining if a criminal conviction is grounds for not offering an applicant a job.
“Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.”
 I’d like to see a reference here to another article and hotlink out.
 If we have a real example of a real case, let’s use that example specifically and link to it instead.
 Source? Do we have an article on “The rise of discrimination claims and what to do about it?”