Is Your Company’s Employment Application Going to Get You Sued?

There are a number of basic rights that every U.S. citizen is entitled to when they are seeking employment.  These include protection from being denied employment based on race, color, religion, gender, and national origin.  In addition to these there are gray areas such as age, familial status and sexual orientation which will likely be added with Federal protection at some point in time. What is clearly absent from these lists is language that protects citizens with criminal records from being denied employment.  The Equal Employment Opportunity Commission (EEOC) seeks to change this.

employment screeningAs part of a civil rights campaign to reduce discrimination in the workplace, the EEOC implemented their “Ban the Box” initiative. The box being referenced is a question on many job applications that asks whether the applicant has ever been convicted of a felony. It is the belief of the EEOC that asking this information before the applicant has had an opportunity to be interviewed will instantly remove their candidacy from a position they may have been qualified for.

So far there have been 18 states and over 100 cities and counties to adopt “Ban the Box”, and there is building pressure for it to become a federal mandate.

The states to adopt this policy so far are:

• California
• Colorado
• Connecticut
• Delaware
• Georgia
• Hawaii
• Illinois
• Maryland
• Massachusetts
• Minnesota
• Nebraska
• New Jersey
• New Mexico
• Ohio
• Oregon
• Rhode Island
• Vermont
• Virginia

For states that have already implemented the policy, a new process has been incorporated into their pre-employment practices.  No longer is the question of felonious activity included on the application; however different regions may choose when it is appropriate to conduct the background check. For example the City of Oakland in California has gone so far as to promote not referencing criminal histories at all unless it is relevant to the job position. Minnesota, on the other hand, only promotes holding off on conducting the background check until at least an initial interview has been conducted.

The motivation behind this policy is the idea that a change to the hiring process will alleviate disparate impact. In this situation disparate impact is the view that there is a disproportionate amount of black males in the U.S. prison system which has lead to discrimination against race in the workplace. Because of the association, it has become a civil rights movement with a lot of momentum picking up in the last few years.  Pressure has been mounting on the federal government to make “Ban the Box” a standard requirement that all states must adhere to.

Employers are encouraged to be mindful of this practice regardless of the state(s) they operate in.  While more than one third of the country is required to remove the box from their applications there is enough legal precedence that may give applicants an edge should they feel discriminated against by an organization’s hiring process.


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