Ban the Box and Open the Door to Opportunity

by JoAnn Kamuf Ward  

18 states have done it.  Over 100 cities and counties have done it.  Walmart has done it.  Koch Industries has done it.  The critical question is:  will the federal government be next to “ban the box”?

On July 20^th, the US Department of State convened a human rights townhall as part of its engagement in the UPR process – an opportunity for advocates to discuss how the US federal government should respond to the more than 300 recommendations made to the US in May.  The Leadership Conference on Civil and Human Rights kicked off civil society interventions, urging the federal government to join the growing ranks of employers that have agreed to remove the question “Do you have a prior arrest or conviction record?” from employment applications.    

 The Leadership Conference’s recommendation echoes a growing call for the Administration to issue an executive order banning the box for federal agencies and federal contractors.  The national “Ban the Box” movement emerged from grassroots organizing by All of US or None to address the problem of “lifelong discrimination and exclusion because of a past arrest or conviction record.” 

 All of US or None considers itself a civil and human rights organization and this is clearly a human rights issue.  Most obviously, banning the box is responsive to UPR recommendation 274, which calls on the US to develop a national strategy to reintegrate “former detainees and to prevent recidivism.”  The practice of asking job applicants whether they have an arrest or criminal record has deeper human rights implications as well.  It runs afoul of the general prohibition of discrimination and places undue restrictions on the right to work as well.  Importantly, human rights not only place on obligation on governments not to discriminate, they require action to prevent discrimination by private actors, bolstering the call to ban the box across employment sectors.

 The fact that increasing levels of incarceration have a disproportionately negative impact on communities of color is clear. (According to DOJ statistics from 2012, Black men were 6 times more likely to go to prison than White men, while Hispanic males were two times as likely.  Black females ages 18 to 19 were three times more likely to be imprisoned than white females of the same age, while Hispanic 18-19 year olds had imprisonment rates almost double that of white women. 

 Placing a question about criminal records on employment applications exacerbates this inequity and severely restricts the opportunity for a second chance.  Indeed, when instituting “ban the box” protections in Virginia earlier this year, Governor McAuliffe highlighted that “[w]e all know this box has a disparate impact on communities of color.”  We all know, as well, that limiting access to gainful employment is a surefire way to ensure financial insecurity for individuals with criminal records in all communities.

 Just asking the question about criminal records can deter an individual from finishing a job application.  Applicants that do take the steps to complete an application, and check the box, run the risk of  being dismissed from consideration with no assessment of their individual skills, character, and qualifications.  The NY Times has reported that disclosing a criminal record has a clear negative impact, reducing the likelihood of a callback or job offer by fifty percent.  (To clarify, banning the box does not mean that a background check can’t take place –it means eliminating the threshold question of criminal records from the interview and screening stage).

 By removing the criminal record question, government employers foster equality and opportunity in the public sector.  While banning the box does not address the underlying factors that perpetuate mass incarceration, it chips away at the stigma that millions of Americans face as a result of coming into contact with the criminal justice system.  As others have reported, there is also evidence that keeping people with criminal records out of the labor market hurts the economy.  Notably, by increasing employment opportunities for those who have been arrested or convicted, governments can reduce the factors that lead to recidivism.

 When governments “ban the box” in public employment, they strengthen respect for the human right to be free from discrimination.  When governments go further and restrict questions about criminal records in private employment, they bolster human rights by protecting against discrimination by third parties.  San Francisco’s ordinance does just that, it prohibits public and private employers from asking about criminal records.   Minnesota revised its law in 2013 to do the same.  (Massachusetts, Rhode Island. Buffalo, Seattle, Philadelphia, Newark, and Rochester also “ban the box” for certain categories of private employers).

 Obama signaled support for banning the box in his speech at the NAACP conference last month.  His support builds on recommendations from the My Brother’s Keeper Taskforce, which called for hiring schemes that “give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits.”  Guidance issued by the EEOC in 2012 on consideration of arrest and employment records also supports banning the box.  This Title VII guidance notes that it is a best practice for employers to “eliminate policies or practices that exclude people from employment based on any criminal record” and counsels towards “limit[ing] inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.“

 As the Leadership Conference recently stated: “By eliminating the litmus test that denies all applicants who have been in prison the opportunity to work, we ensure that … we are 'a nation that believes in second chances.'”   

It is not often that human rights advocates and the Koch brothers agree.  The ever-growing bipartisan support for banning the box should be a call to action – its fair, its smart, and it's a critical way to foster opportunity for the more than sixty five million Americans who have an arrest or conviction record. 

[Want to know more?   The National Employment Law Project tracks state-level efforts, as well as city and county legislation .  In 2010, NELP and the National League of Cities jointly developed a resource on promising reentry policies at the city level, which can spark further innovation at the local level.]