Is Banning the Box Too Costly for Employers – Employment Law

Is Banning the Box Too Costly for Employers?

Banning the Box

banning the boxLast year, the federal government made a concerted effort to banning the box when it came to past convictions. The “box” referred to is the box on job applications which asks applicants whether they have been convicted of any crime, including felonies. It was believed that a number of otherwise-qualified individuals (many of them minority applicants) were not being considered for job positions simply because they had a criminal history. The federal government took the lead and declared it was banning the box when it came to its own hiring practices, and many companies in the private sector responded favorably to the idea themselves. However, guidance from the Equal Employment Opportunity Commission (EEOC) about implementing the practice has some private employers wondering if banning the box comes with more costs than benefits.

Banning the Box Means Individualized Assessments

Banning the box does not mean that employers are not able to take a person’s criminal history into account when determining whether to hire that individual. Instead, it simply means that the fact a person does have a criminal history should not be an automatic disqualifier to a potential employee. Instead, the employer is expected to conduct an individualized assessment of the candidate, including his or her criminal record, before determining not to hire the individual. The process would work something like this:

  • The potential employee would see a job position advertised and would make application to be considered for the job;

  • On the application and/or during the job interview, the potential employee would disclose to the employer that he or she has been convicted of one or more crimes;

  • The employer would verify this by conducting a criminal background check;

  • The employer would make a determination as to whether the criminal history of the individual affected his or ability to complete the job tasks of the position and/or raised questions about his or her ability to work safely around others and not harm the personal or property interests of the employer;

  • If such questions or concerns did in fact arise, the potential employee should be given an opportunity to address the concerns either in person or in writing and describe for the employer why those concerns are unfounded;

  • The employer would then make a hiring decision. If the employer decided not to hire the individual, then the person would be provided an explanation if his or her criminal history played a role in the decision.

It is contemplated by the EEOC that such assessments would be completed for each job applicant with a criminal past.

While private sector employees generally believe that banning the box is a good idea and gives those who would have been automatically screened out of the job application process a real opportunity to compete for work, some employers are concerned about the cost that the EEOC’s desired “individual assessments” would cost. Employers who hire a large number of workers throughout the year or who typically have a large number of applicants who apply for a job posting are wondering if the time and resources necessary to review every applicant’s criminal history are too great.

The Cost of Individualized Assessments

While such concerns may have some validity, at least for now employers wanting to comply with the EEOC’s hiring guidance must be prepared to take on the extra burdens that individual assessments will cause by banning the box. Employers should consider the following: either protecting themselves from potential lawsuits and complaints by expending the necessary time and resources in conducting individual assessments, or be prepared to pay the costs of a complaint or lawsuit filed by a disgruntled applicant with a criminal history.