Ban the Box Pervasive Enough for Studies to Show Whether Fair Chance Laws are Effective in 2019

ESR Top Ten Background Check Trends for 2019

Written By ESR News Blog Editor Thomas Ahearn

“Ban the Box” laws that remove questions about the criminal history of applicants from job applications to help ex-offenders find work will be pervasive enough for studies to show whether fair chance rules are effective in 2019. This trend has been chosen by global background check provider Employment Screening Resources® (ESR) as fourth on the list of “ESR Top Ten Background Check Trends” for 2019.

“Ban the Box” is a nationwide movement that seeks to advance job opportunities for people with prior criminal convictions by eliminating any inquiry on job applications into the criminal history of candidates, specifically the check box that requires candidates to disclose their criminal history. As of December 2018, more than 150 cities and counties and over 30 states have passed Ban the Box laws.

States that have passed Ban the Box laws include Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, Nebraska, New Jersey, New Mexico, New York, Nevada, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

Ban the Box is growing fast. In 2018 alone, New Orleans, Louisiana passed a Ban the Box ordinance, Michigan removed criminal history questions from state job applications, Massachusetts amended its Ban the Box law, San Francisco, California amended its Fair Chance Ordinance, St. Louis, Missouri adopted a Ban the Box order, and a Ban the Box law took effect in the state of Washington.

Originally, Ban the Box laws were concerned with the initial the application process, but now many of these laws have morphed into Fair Chance laws that also impose processes for how criminal information is utilized, according to ESR founder and Chief Executive Officer (CEO) Attorney Lester Rosen. In other words, Ban the Box laws often are no longer limited to just the application process.

Rosen said having mixed local and state Ban the Box laws without giving employers protections from negligent hiring lawsuits could be challenged as hurting ex-offenders more than helping. In addition, studies show that without screening, some employers assume an applicant has a criminal record or they may rely more on continuous past employment, which is even worse for ex-offenders looking for work.

Rosen – author of “The Safe Hiring Manual” – explained how a consistent statewide Ban the Box policy where employers are given some sort of immunity if they hire an ex-offender is likely the most effective way of giving people a second chance. With Ban the Box trending for a few years, these Fair Chance laws have been in operation long enough for academic studies to show whether they are effective or not.

Does Ban the Box work? A study entitled “Ban the Box, Convictions, and Public Sector Employment” released in January of 2017 found that public sector Ban the Box policies increased the odds of public sector employment of ex-offenders with criminal convictions by nearly 40 percent. The Ban the Box study uncovered no evidence of statistical racial discrimination against young low-skilled minority males these laws try to help.

A report entitled “Ban the Box and Racial Discrimination” released in February of 2017 suggested Ban the Box policies could be improved with policy additions to support equal employment opportunity laws that help prevent racial discrimination. The report proposed policy additions that may help eliminate the unintended consequences of Ban the Box on young black and Latino men.

A study released by the National Employment Law Project (NELP) in 2011 estimated that approximately 64.6 million ex-offenders in the United States – more than one in four American adults – have a criminal record of some kind. NELP, a nonprofit organization supporting low-wage workers and the unemployed, has since revised that number of U.S. adults with criminal records up to 70 million people.

In August of 2016, NELP released a policy brief – ‘Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies’ – that was critical of two studies that claimed Ban the Box policies meant to help applicants with criminal records find work could do “more harm than good” by unintentionally harming minority job seekers. NELP believed these Ban the Box studies reached “the wrong conclusion.”

According to the Ban the Box policy brief from NELP: Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record.  One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion.

The policy brief from NELP described Ban the Box policies in the following manner: “Ban the box” – the policy reform typically associated with delaying background check inquiries – was not intended as the silver bullet to a racially biased criminal justice system.” NELP concluded that “the studies focus their criticism on the Ban the Box policy – not the racism that the policy exposes.”

NELP was referring to a study issued in July of 2016 – ‘Does “Ban the Box” Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories are Hidden’ – that claimed Ban the Box policies decreased the probability of being employed by 3.4 percentage points for young, low-skilled black men, and by 2.3 percentage points for young, low-skilled Hispanic men.

While Ban the Box is meant to help minority job seekers, the study found “removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black and Hispanic men when criminal records are not observable.”

NELP was also referring to a study released in June of 2016 – ‘Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment’ – that claimed white job applicants were four times more likely to receive a call back from an employer for employment than black job applicants after Ban the Box policies were implemented, compared to only slightly more likely before any Ban the Box policy.

Many universities in the U.S. ask student applicants about their criminal history as a necessary security precaution. The Chicago Tribune reported in November 2018 that “the majority of American universities ask prospective students to disclose criminal backgrounds on applications. That’s the case in Illinois, where most major schools request criminal histories and say they have no plans to change course.”

A 2017 policy brief from the Brookings Institute in Washington, D.C. stated that national surveys in 2009, 2010, and 2014 “indicate that 60 to 80 percent of private institutions and 55 percent of public institutions require undergraduate applicants to answer criminal history questions as part of the admissions process.” Yet Ban the Box reform is growing in the academic sector.

In August of 2018, officials of the Common Application accepted by more than 800 schools announced they would stop collecting criminal history information on the Common App and School Report starting August 1, 2019. However, The Common Application’s member institutions will continue to be able to collect criminal history information on their individual member screens if they so choose.

The U.S. Equal Employment Opportunity Commission (EEOC) – the federal agency that enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin – recommends employers not ask about convictions on job applications in its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.

To help employers comply with Ban the Box laws, Rosen acted as a consultant in the development of a report entitled “Best Practice Standards: The Proper Use of Criminal Records in Hiring” outlines best practices for complying with anti-discrimination laws that were created by the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute.

Employment Screening Resources® (ESR) helps employers understand Ban the Box with complimentary white papers such as “Ban the Box Now More than the Exception for Employers when Screening” and the “ESR Ban the Box Resource Guide for States, Counties & Cities” that has an up to date list of Ban the Box laws. All ESR white papers are at www.esrcheck.com/Tools-Resources/Whitepaper-Library/.

Employment Screening Resources® (ESR) – a leading global background check provider – also offers employers a Ban the Box Resource Page with complimentary whitepapers, infographics, and an interactive map updated with the latest Ban the Box laws for states, counties, and cities in America. The ESR Ban the Box Resource Page is available at www.esrcheck.com/Legislative-Compliance/Ban-the-Box/.

Starting in 2008, Employment Screening Resources® (ESR) has selected background check trends that have impacted the future of the background screening industry. Each trend will be revealed on the ESR News Blog and also listed on the “ESR Top Ten Background Check Trends” web page which is available at www.esrcheck.com/Tools-Resources/ESR-Top-Ten-Background-Check-Trends/.

Employment Screening Resources® (ESR) is a global background check firm that is accredited by the National Association of Professional Background Screeners (NAPBS), undergoes annual SOC 2® Type 2 audits, was named to 2018 HRO Today Magazine Baker’s Dozen for Top Pre-Employment Screening Service, and won the 2018 HRO Today Tektonic Award for innovative and disruptive background screening technology. To learn more, visit www.esrcheck.com.

ESR Webinar on Top Ten Background Check Trends for 2019

ESR founder and CEO Attorney Lester Rosen – a noted background check expert and author of “The Safe Hiring Manual” – will also host a live complimentary webinar entitled “ESR Top Ten Background Check Trends for 2019” that will take place on Wednesday, January 30, 2019, from 11:00 AM to 12:00 PM Noon Pacific Time. To register, visit https://register.gotowebinar.com/register/5840930517922184451.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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