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The Dangers of 'Ban the Box'
To prevent job applicants with criminal records from being automatically rejected, cities and states are considering and already adopting so-called “Ban the Box” laws and ordinances. Among the states that have adopted such laws are Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico, and the cities of Atlanta, Baltimore, Chicago and Philadelphia. Among those mulling such legislation are Rhode Island and Nebraska, and the city of Pittsburgh, PA.
The paternalistic nature of this legislation “echoes” laws already being imposed by several cities and states on use of applicant arrest records. Jurisdictions including the states of California and New York and the city of Philadelphia forbid inquiries into applicant arrests that failed to lead to convictions, because an arrest, in and of itself, implies no guilt. In states such as Illinois and Massachusetts, employer “use” of an arrest record is an unfair employment law practice.
Employers beyond such “steer-clear-of-arrests” jurisdictions must be wary of using arrest records in hiring. Guidelines from the Equal Employment Opportunity Commission (EEOC) that enforce federal anti-discrimination laws warn that use of arrest records has a disparate impact on protected groups such as African-American males, and therefore cannot be used to routinely exclude applicants from employment. While these guidelines contain limitations, employers within the United States need hiring practices to avoid potential pitfalls associated with arrest inquiries.
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