Obama embraces ‘ban the box’ movement

published in McAfee & Taft EmployerLINC | November 13, 2015


By Courtney Bru

In November, President Obama announced that he was directing federal agencies that they could not inquire about criminal convictions on federal job applications. According to the president, the federal government “should not use criminal history to screen out applicants before we even look at their qualifications.” The president has directed the federal Office of Personnel Management to issue guidance to each federal agency in accordance with his directive.

This announcement is yet another sign of the momentum that the so-called “ban the box” movement continues to enjoy throughout the country. At least 19 states and more than 100 cities and/or counties have adopted some type of “ban the box” legislation. Many of these entities have extended these prohibitions beyond governmental employers to governmental contractors and even private employers. Oklahoma has not enacted any such legislation.

Obama: ‘Give folks a chance’

It’s important to understand what “ban the box” means – and what it does not mean. It generally means that employers will not ask applicants to disclose information about their criminal histories on the application itself. It may also mean that employers cannot perform criminal background checks until applicants are deemed “finalists” for particular positions or receive conditional offers of employment.

“Ban the box” does not require employers to hire any particular candidate and does not require an employer to hire an individual with a criminal conviction. It does not create an exception to those laws that mandate consideration of criminal history for certain positions, such as teachers, public transportation workers, etc. In the words of President Obama, it is intended only to “give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”

EEOC guidance to avoid disparate impact claims

The movement aligns with the Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Citing national data, the EEOC takes the position that excluding candidates from potential hire on the basis of criminal history has a disparate impact based on race and national origin. It recommends that employers not request information regarding criminal history on job applications. The EEOC further recommends that employers not consider arrests during the hiring process because an arrest does not necessarily mean that the individual actually committed criminal conduct. Employers are encouraged to consider criminal convictions only when they are “job related for the position in question and consistent with business necessity.” In other words, the employer must be able to show that that its consideration of criminal history “operates to effectively link specific criminal conduct, and its dangers with the risks inherent in the duties of a particular position.” Employers are also strongly encouraged to consider each individual’s specific circumstances, specifically (1) the nature and gravity of the offense or conduct, (2) the amount of time that has passed since the offense, the conduct or the completion of the sentence, and (3) the nature of the job sought.

Best practices for Oklahoma employers

Oklahoma employers that consider criminal histories need to follow a few steps to justify their reliance. First, be sure you can articulate the actual, essential job functions — the duties of the position in question that are performed on a regular basis. Second, identify those types of criminal convictions that may render an applicant unfit to perform those essential duties. Third, establish some general criteria for consistent application. For example, how recent must criminal behavior be to render an applicant unfit? Finally, when making decisions based on criminal, document your consideration of criminal history.