6 Things You Should Know About President Obama’s ‘Ban the Box’ Executive Order

December 17, 2015

6 Things You Should Know About President Obama’s ‘Ban the Box’ Executive Order 150 150 Shegerian Law

For years, ex-convicts have battled the bias of their criminal pasts and the challenges presented when finding gainful employment. Employers, reluctant to take on the risks of overseeing and trusting workers with criminal history, often automatically deselect ex-convicts who apply for even the most menial positions.

The Order Prevents Exclusion of Federal Job Applicants with a Criminal Past

Recently, President Obama addressed the issue of criminal history bias and discrimination in an Executive Order attempting to ‘ban the box’ placed on applications requiring ex convicts seeking federal employment to reveal their conviction status. According to the Order, federal government employers and contractors must now refrain from excluding applicants with a criminal history based on early hiring documents.

The Order does not ban background checks or employer attempts to acquire information about whether a worker has a criminal past. Rather, it requires employers to assess that information later in the hiring process, rather than at the outset, when hiring agents are more likely to weed out or discard applications showing the presence of a criminal record.

The President’s Executive Order comes just after changes to federal sentencing rules in 2014 made the release of up to 46,000 non-violent offenders possible. The Order continues President Obama’s efforts to help facilitate the release of inmates and make job hunting easier for them once they come out of prison.

‘’Ban the Box’’ Refers to the Elimination of a Particular Employment Application Checkbox

The term ‘’ban the box’’ has come to acquire noteworthy significance since its use went viral in 2014. It refers to the checkbox on most employment applications requiring an applicant to  indicate whether or not they’ve been convicted of a crime in the past.

The trend towards banning the criminal history check box has gained traction at state and municipal levels. It’s also created a patchwork of laws that vary according to geographic location. Critics view the lack of uniformity among ‘ban the box’ laws across the nation as a serious drawback. Many say that the laws are far too heavy a burden for employers who should be allowed to make their own decisions about the hiring process.

The Executive Order Addresses the Link Between Ex-Convicts and Employment Discrimination Law

Hiring bias toward ex-convicts could be in violation of several federal anti discrimination laws. Under normal circumstances, workers are protected against discrimination based on race, sex, color, national origin, religion, disability, sex and age according to the 1964 Civil Rights Act. In addition, a host of similar laws, such as the Pregnancy Discrimination Act and the Age Discrimination in Employment Act, provide additional protection for various classes of workers.

While ex-convicts are not explicitly protected from discrimination under these laws, the Equal Employment Opportunity Commission (EEOC) has taken notice of the increasing difficulties this class of workers faces in the employment sector. In 2012, the agency released enforcement guidelines to assist employers with legal questions regarding the use of criminal records in employment decisions.

According to the EEOC, employers should eliminate policies and practices that exclude ex-convicts based on any criminal record and instead develop a narrowly tailored policy that carefully screens applicants for criminal conduct. The agency also suggests that employers limit questions about criminal history and limit inquiries solely to criminal conduct on record.

‘’Ban the Box’’ Policy Can Also Be Found in States, Cities and Private Companies

Hawaii became the first state to ‘ban the box’ in 1998, while the City of Philadelphia became the first municipality to do so in 2012.

So far, 19 states in total and over 100 cities and counties have removed the criminal conviction checkbox from public employment applications. These include California, New Jersey, Vermont, New Mexico, Oregon and Colorado – a vast range of states covering every region of the nation. Some states such as Hawaii, Illinois and Oregon have expanded the ban to cover private employers as well.

Some private companies already have their own ‘ban the box’ policy in place. While there is currently no federal law requiring companies to ‘ban the box’, companies like retail giants Target and Walmart have already launched policies that either delay the criminal history question or eliminate it altogether. Some see this as a trend worth following for companies seeking to avoid difficulties associated with compliance across a number of different states and localities.

The President’s ‘Ban the Box’ Order May Be an Attempt to Reduce Recidivism Rates

According to statistics from the Justice Department, 60 to 75 percent of newly released convicts are unable to obtain work in the first year of release. Questions about criminal history on employment applications has consistently been a significant obstacle for ex-convicts, and unemployment is often associated with high re-entry rates.

Such a phenomena has significant impact on the job sector – particularly for minorities. Studies have shown that the percentage of Americans with criminal history has grown, having the most effect on persons of color. The exclusion of those with criminal history from the hiring process thus can be shown to have a disparate impact on minority job seekers more likely to be targeted by the justice system.

With research showing post-release employment tends to reduce the likelihood of re-offending, it will be interesting to see whether the President’s Order has a positive impact on recidivism rates. If so, it may provide sufficient impetus for a nationwide ‘ban the box’ law that would significantly reduce rates of re-entry across the country.

The Ban The Box trend is rooted in the Federal Fair Chance Initiative

In January 2015, the National Employment Law Project joined hands with several other employment law advocacy groups to launch a campaign to address the challenges ex-convicts face in the employment sector. The campaign, called the Federal Fair Chance Initiative gained traction in the media and created a viral message in support of ‘ban the box’ legislation across the nation. The initiative has support from over 200 national and local organizations as well as 27 Senators and 70 House members.

‘’Ban the Box’’ is Here to Stay

The President’s Executive Order has given the ‘ban the box’ movement noteworthy credibility which means that ‘ban the box’ legislation is likely to reach even higher heights across states and cities. It may even lead to a federal law that delays the box until late in the hiring process if not totally eliminating it altogether in private companies throughout the country. For now, the ‘Ban the Box’ order will serve to level the playing field for ex-convicts seeking employment with federal contractors and agencies – a huge step in anti-discrimination law and policy.

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