The EEOC developed its guidance in April, 2012 in regards to asking about convictions during the hiring process. The backing for this guidance has become known as Ban the Box.
“Some states require employers to wait until late in the selection process to ask about convictions. The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when employers are already knowledgeable about the applicant’s qualifications and experience. As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.” http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
The Ban the Box idea was created as a way to better the opportunities provided to applicants with criminal convictions. Many employers would prefer to put together all the pieces of the hiring puzzle and then make a decision on whether or not to move forward in the hiring process. There is a concern that waiting until after a conditional offer has been given, or somewhere later in the process, money will have been spent on the candidate hiring process, and then more money will have to be allocated to run through the entire hiring process again if it turns out the candidate has a record that will discontinue him from the process.
There are currently 17 states that have passed ban the box legislation. These include California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Rhode Island, Vermont and Virginia. Along with these states, there have been over 100 cities and counties that have also passed a Ban the Box law.
Employers always reserve the right to not hire someone based on a criminal record, even rescinding a job offer if the guidance is followed as recommended above. It’s important for employers to understand the guidance, and include that in their hiring practices. This includes evaluating the criminal offense, and ensuring that it is indeed job related.
The Ban the Box movement is a very complex movement because in most cities and states where it has been passed, there is not one consistent standard to measure against. If employers are not careful, they may find themselves in hot water with the EEOC, and be faced with a lawsuit brought on by unfair hiring practices.