Criminal records, "ban the box," and discrimination

Everyone believes that people deserve a second chance. But while the idea of redemption is great in concept, it doesn't always pan out - especially when it comes to the workforce.

For those employees and job-seekers with criminal records, the past doesn't have to spell doom for your professional future - at least not in theory. However, while a criminal record isn't legally a death sentence for applicants, many have found that in practice it can be a significant hurdle to finding gainful employment post-incarceration. Fortunately, legislators have recognized the problems with current hiring practices as they pertain to criminal background checks, and bills and laws are making their way through Congress that are designed to level the playing field for applicants with a record.

The damage of a criminal record
It's probably not surprising that hiring managers are wary of extending offers to candidates with criminal records. This isn't necessarily prejudice - liability extends to a company in the event of an accident or a crime that occurs at the workplace, so vetting applicants for potential risk as well as experience and cultural fit is an essential part of responsible hiring.

According to a 2011 report from the National Employment Law Project, the 9/11 attacks have had a significant impact on the use of criminal records when it comes to recruiting and hiring. The source indicated that some 90 percent of companies include questions about criminal records on the initial job application, before a criminal background check is performed or even prior to an interview taking place. While many companies have made the claim that the presence of a prior misdemeanor, or even in some cases a felony, doesn't constitute immediate grounds for not being hired, in practice the numbers go against that claim. Even more striking, some companies have explicitly stated that no candidate with a record will be considered.

There are some 65 million job applicants who have criminal records. As current legislation stands, there is little to prevent companies from implementing overly broad standards regarding background checks. This has become enough of an issue for the Equal Employment Opportunity Commission to take notice. Among other concerns, the practice of selectively screening initial applicants based on criminal history contributes to racial discrimination in the workplace. The NELP report indicated that black Americans represent 28 percent of the arrests in the U.S., but only compose 12 percent of the population. In contrast, whites, who make up 63 percent of the population, face criminal-related discrimination proportionately far less than others.

The EEOC has been very clear about this relationship, stating, "An absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII [of the Civil Rights Act of 1964]."

Ban the box and employers' obligations
Managers have attempted to strike a balance between complying with federal law and recruiting based on their own internal standards, but the challenge is ongoing. One initiative that recently sailed through Congress is what is known as "ban the box" legislation. These types of laws prevent employers in a given state from including a checkbox on an initial job application that asks about prior convictions. The Fair Chance Act, enacted Oct. 7, prevents government employers from making any inquiries into an applicant's criminal background until a conditional job offer has been extended.

"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," Sen. Cory Booker, D-N.J., told the Society for Human Resource Management.

States and private companies have started following suit, including New York City and Philadelphia. The legislation facing New York policymakers would impose a three-step system when it comes to background checks. First, private employers must submit a written request to the applicant for a summary of criminal background. Second, before any conditional offers can be revoked, the employer must first issue a written analysis of the record, indicating the effect the candidate's background had on the decision to forego hiring them. The third component of this legislation states that applicants must be provided with a reasonable amount of time to respond to the revocation. During this response period, the company must hold the position open for the candidate. This law would affect any private business with four or more employees, excepting positions that legally require criminal background checks.

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