“Ban the Box” is a new initiative spreading across our country where states or municipalities are enacting legislation that prevents employers from enquiring about felony criminal convictions during the hiring process. The idea behind this movement is to give everyone (convict or not) an equal chance to apply for a job. Proponents of “Ban the Box” claim that applicants with a criminal history are unfairly discriminated against before being given the chance to prove they may be a good fit for a position. Opponents feel that it opens the door for criminals to obtain employment and potentially harm their employers, fellow employees or customers. So far, 28 cities and counties in the United States have passed this legislation and it appears that Seattle may be the next one to follow suit.
Seattle City Councilman, Bruce Harrell, has introduced a bill that would prevent employers and landlords from using a person’s criminal record against them. Harrell’s reasoning is that when seeking a home or employment, felons are often discriminated against, which turns them back to criminal acts and creates a cycle. He stated, “The data is overwhelmingly supportive of the fact that when people are working, they are less likely to commit crimes. In particular, property crimes.”
Bill Hinkle of the Rental Housing Association of Puget Sound disagrees with the councilman. He works with both employers and landlords who hire a variety of staff. Mr. Hinkle commented, “You have to be able to give us a tool to measure the risk. You can’t lump felons in with guys who have petty crimes and say, ‘Well, you have to accept everybody.’”
Councilman Harrell noted that the part of his legislation dealing with employment would allow for exceptions if the nature of the crime committed had a direct correlation to the job, especially those working with children, seniors or in banks. It also allows for a criminal background check; however, it can only be done late in the hiring process. Harrell wants each individual to be assessed based on the crime committed and relevancy to the position applied for. This also falls in line with the EEOC’s new guidance on the use of criminal records.
Opponents of the legislation are obviously concerned about the liability this may pose for employers. If they abide by the proposed legislation (if it is enacted) and hire an ex-felon who commits a crime while on the job, will the employer be liable? What protection is offered to them?
Whether or not you are an employer doing business in an area with “Ban the Box” legislation, it’s a good idea to review your application process for any red flags that may subject your company to a discrimination lawsuit. Review your job application on a regular basis with your legal counsel to ensure you are in line with local, state and federal laws.