Q&A: Why Is `Ban the Box’ State Legislation Growing in Popularity?


One of the biggest emerging issues in employment discrimination law today is the issue of employers running criminal background checks on job applicants or asking them upfront about their arrest record. According to a report by Bloomberg BNA legal researchers, in 2014 several state legislatures passed “ban the box” laws that prohibit employers from asking about or considering an applicant’s criminal background until the later stages of the application process, such as the first interview or after a conditional offer of employment has been made.

Lois Davis, a Senior Policy Researcher with the RAND Corporation in Santa Monica, Calif., recently spoke with Bloomberg BNA on the issue.

BBNA: Why is there a perceived need for this type of legislation?

Davis: Ex-offenders have a number of barriers to getting employment once they are out of prison. It is not enough to merely provide them with education and credentials while they are in prison.  In addition, employers react differently when they see a person’s race alongside a criminal record, and the combination makes it even harder for most ex-offenders as the realities of the criminal justice system makes most of them minorities. Employment is a good indicator of future success, and these laws will help ex-offenders to succeed once they get out of prison.

BBNA: Were there any major events or cases that precipitated a movement towards this shift in policy?

Davis: The Second Chance Act (passed in 2007 on the federal level) allowed for a shift in momentum in changing attitudes towards the situations of ex-offenders. The Act provided a great deal of federal funding to do a lot of work in the area of prisoner re-entry, which has helped the situation. In addition, the 2008 recession put pressure on governments in the United States to reduce mass incarceration in order to reduce their budgets. This put a greater emphasis, which has continued since, on reducing recidivism.

BBNA: What are the potential implications for the hiring process as a result of these laws? In other words, how will employers change the way they approach applicants who have criminal backgrounds?

Davis: Because a vast majority of job applications today are done online, computer programs can automatically screen those applications for those that indicate the presence of a criminal record and sort them automatically into the “no” pile. These laws mean that fewer of those applications are tossed aside automatically. These laws also try to address the fact that some criminal records are either incomplete or inaccurate, which further compounds the problem for many people. With the way the criminal justice system works today, minorities are more likely to be impacted by background checks early on.

BBNA: How do these types of laws make it easier for ex-cons to gain employment? How does delaying the background check until later in the process help applicants who have criminal backgrounds?

Davis: They give ex-offenders the chance to make their cases and address their past while explaining what they are doing to make themselves better for the future. However, the various departments of corrections need to play a role, and make connections with employers in order to get ex-offenders work opportunities when they get out of prison.

BBNA: Although they are not as extensive as general ban the box laws, how do laws that only affect the ability to become professionally licensed help ex-cons?

Davis: These laws address a different aspect of what barriers are present for ex-offenders that is very important. This is one slice of the puzzle to breaking that barrier because the license or certification is important in obtaining stable employment in many areas.

BBNA: Is there any evidence that these laws actually work/solve the problem?

Davis: There has been one study done in relation to Hawaii’s 1998 ban-the-box law to see whether it was successful in reducing the number of repeat offenders, and the study showed that it was indeed successful (50% of felony convictions were from people who were first-time offenders at the end of the study, compared to a significantly higher percentage of repeat offenders at the starting point). However, several related questions have yet to be answered, such as how these laws affect employers (More productive workforce? Turnover rates? Insurance rates for employee conduct?), whether there is more stable employment for individuals, and what the impact is on the family and children of ex-offenders.

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