Almost one in three adults in the United States has a criminal record that will show up on a routine criminal background check. Given the proliferation of employment background checks—9 out of 10 employers now conduct criminal background checks for employment —millions of workers with records are finding it increasingly difficult to compete for jobs. According to a recent New York Times/CBS News poll, having a criminal record contributes to high levels of unemployment among prime-age working men—34 percent of unemployed men ages 25 to 54 have been convicted of a crime. A growing concern in some quarters that background checks are being used to not only exclude applicants with a criminal record, but also to systematically eliminate applicants from the hiring process based on race and national origin, has fueled a national “Fair Chance to Work” movement. As a result, “Fair Chance” hiring policies have rapidly taken hold in states and localities across the United States.
Fair chance hiring refers to a set of hiring policies designed to ensure that applicants with criminal records are evaluated on the merits of their qualifications, not just on their criminal records. The rationale behind the campaign is that if employers ask on the initial job application about criminal history, millions of workers may be eliminated even if they might be qualified for the jobs. The movement is also referred to as “Ban the Box.” It is so named after the checkbox on applications asking about a job applicant’s criminal background.
The movement was started ten years ago by a San Francisco-based organizing group, All or None of Us (“AOUON”), made of up previously incarcerated individuals. In 2005, AOUON successfully petitioned the San Francisco Board of Supervisors to adopt a resolution to remove the conviction history question from public-sector job applications. In 2006, the City and County of San Francisco adopted the policy. In less than 10 years since the movement was first launched, the number of jurisdictions adopting fair chance hiring has surpassed 100, including 16 states, the District of Columbia and nearly 100 cities and counties.
On August 6, 2010, Governor Deval Patrick signed into law “An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre- and Post-Trial Supervised Release,” S. Rep. No. 186-2583 (Mass. 2010) (Conf. Rep.). This law was the second in the nation to codify the so-called “ban the box” provision, which prohibits public and private employers with more than six employees from asking about an applicant’s criminal offender record information (“CORI”) on an initial written application form.
In the last few years, the list of jurisdictions with similar laws has rapidly expanded. As of April 2015, seventeen states, including Massachusetts and the District of Columbia have adopted some form of ban-the-box legislation, although the details vary. Fifteen states (California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Rhode Island and Virginia) and the District of Columbia have adopted legislation limiting a public employer’s ability to make inquiries regarding an applicant’s criminal background at the application stage. Of these states, six (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island) and the District of Columbia impose the prohibition on private employers, which advocates embrace as the next step in the evolution of these policies. In addition, nearly 100 jurisdictions nationwide have enacted similar legislation making it unlawful for state, city, county or other local agencies to inquire about an applicant’s criminal history on employment applications. At least twenty-five cities and counties now extend “ban the box” laws to private employers. The majority of these laws have been enacted within the last three years.
Private employers can expect additional cities and states to adopt “ban the box” legislation that reaches into the private sector and they should remain aware of the growing movement for “ban the box” legislation in cities and states in which they do business.
EEOC GUIDANCE ON CRIMINAL HISTORY
There is no federal ban-the box legislation. However, in 2012, the Equal Employment Opportunity Commission (“EEOC”) endorsed removing the conviction question from job applications as a best practice, making clear its position that federal civil rights laws regulate employment decisions based on arrests and convictions if those decisions implicate the antidiscrimination laws the EEOC enforces. The Antidiscrimination provisions of one of those laws, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., could be violated in one of two ways by an employer.
First, studies have shown that employers may treat whites with a criminal record more favorably than similarly-situated minority applicants with the same or similar criminal record. Treating individuals differently in the employment context (i.e. disparate treatment) is prohibited by Title VII. Second, racial and ethnic disparities in the criminal justice system can cause many more minorities to be automatically eliminated from consideration for jobs at the initial stage of the process than whites (i.e., “disparate impact”). This disparate impact of the criminal background check process on minorities can occur because minorities are arrested and convicted at a much higher rate than whites, and are statistically more likely to have a criminal record. Similarly, disparate impact is also a form of discrimination that is made unlawful by Title VII.
As the federal agency that enforces Title VII, the EEOC has issued guidance on the use of arrest and conviction records in employment decisions. The EEOC’s Guidance advises employers relying on criminal history in making employment decisions to consider the following factors:
The Guidance further underscores the importance of an “individualized assessment” prior to excluding an applicant based on a criminal record, but also refers to permitting exclusions involving specific criminal conduct (i.e. “targeted exclusions”) that are “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.”)
Based on the growing momentum for “ban the box” legislation, employers should reevaluate their pre-employment and hiring practices. In particular, employers should review employment applications to ensure that all questions comply with local and state law. Employers should also ensure that all hiring and recruiting personnel are aware of “ban the box” laws and review all internal Human Resource policies. “Ban the box” legislation is likely to continue expanding in 2015. As a result, private employers that are not currently subject to such legislation should consider reviewing and revising their employment applications and should keep abreast of proposed “ban the box” legislation that may apply to them. Employers with questions regarding “ban the box” should consult with counsel.
 See Binyamin Appelbaum, Out of Trouble, but Criminal Records Keep Men Out of Work, N.Y. Times, February 28, 2015, at 2
See note 5, below.
 Many of “ban the box” laws in other cities and states similarly apply only to employers of a certain size (for example, in New Jersey and Illinois, the law applies to those employers with 10 or more employees). By using the term “initial written application,” the law only prevents applicants from being automatically disqualified for employment because of a criminal record at the first stage of the application process. Employers may still question applicants about felonies and certain misdemeanor convictions at later stages of the process, such as during in-person interviews or on subsequent forms and/or applications. The law gives ex-offenders the opportunity to make it further along in the hiring process and to explain their criminal records in person. See M.G.L. c. 151B, § (4)(9½). Importantly, the ban-the-box provision does not place any limits on employers’ decision-making power. Employers are free to make their own determination that an applicant’s criminal record makes him or her unsuitable for employment. The only condition imposed by M.G.L. c 151B(4)(9½) is that the applicant be given a chance to discuss the criminal record—both its accuracy and relevance to the job in question—before the employer makes the hiring decision.
Employers are free to determine if or when it will inquire about criminal history, with one state agency, the Executive Office of Health and Human Services’ (“EOHHS”), asking whether an applicant has a criminal record only after the candidate has been given a conditional offer of employment. See 101 C.M.R. § 15.06(1)(A).
 See OFCCP Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin” (Jan. 29, 2013).
 See also 19 C.F.R. § 1607.11 (“Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants.”)
] Disparate impact occurs when an employment practice that is facially neutral in its treatment of different groups has harsher consequences on one group than another. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (“practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices”). Criminal background checks have a much more pronounced impact on the minority population in the United States than it does on the white population because the former has an exponentially higher arrest and conviction rate than the latter. For example, according to FBI statistics, African Americans accounted for more than three million arrests in 2009 (28.3% of total arrests), even though they represented only about 13% of the total population in the past decade. Conversely, whites, who made up approximately 72% of the population in the last decade accounted for fewer than 7.4 million arrests (69.1% of total arrests). See Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers’ Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 199 (2014). There is a real concern that racial profiling and other disparities in the criminal justice system are the cause for the higher numbers – not that racial minorities have a higher propensity for crime. The automatic disqualification of racial minorities from the hiring process at its initial stage because of a criminal record might support claims of disparate impact in violation of Title VII.
If you have any questions about the information presented here, need assistance with reviewing and updating policies, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Julie B. Heinzelman at 617 456 8088 or jheinzelman@PrinceLobel.com and Joseph Edwards at 617 456 8131 or jedwards@PrinceLobel.com, the authors of this Alert or click here to contact any of the attorneys in the firm’s Employment Law Practice Group.