[author: David B. Weisenfeld, XpertHR Legal Editor]
A bill proposed by Rep. Hansen Clarke (D-MI) on July 26, 2012, would prohibit employers from asking applicants about their criminal history until after a conditional job offer has been made.
The Ban the Box Act of 2012 (HR 6220) refers to the "box" on initial job application forms that prospective employees often are asked to check off if they ever have been convicted of a crime.
Proponents of the legislation view this question as akin to pinning a Scarlet Letter on applicants since it can effectively disqualify them from ever getting an interview, despite convictions that may have occurred many years earlier. They claim minority applicants are disproportionately affected by such inquiries.
Hawaii and Massachusetts already 'ban the box' on all employment applications while New Mexico, Minnesota and Connecticut prohibit its use by state employers. Rep. Clarke's bill builds on the Massachusetts law as well as others.
A number of major cities also have enacted ban the box laws to reduce barriers for applicants with criminal records seeking work in recent years, including:
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New York;
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San Francisco;
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Chicago;
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Detroit;
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Philadelphia;
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Boston;
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Baltimore; and
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Cincinnati.
Following EEOC
This proposed federal legislation comes on the heels of the EEOC's April 2012 Enforcement Guidance for employers regarding the use of arrest and conviction records in hiring decisions.
The EEOC made clear that before an employer precludes an individual with a criminal record from consideration, it should engage in an individualized assessment of the situation with the applicant so the individual can explain the circumstances of the conviction and why that should not exclude him or her from employment.
In a statement posted on his website, Rep. Clarke said of current screening practices by employers, "By making it incredibly difficult for people with conviction records to find jobs, current employment practices lead to hopelessness and result in more poverty and crime."
The new bill does contain an exception where the granting of employment to an applicant may involve an unreasonable safety risk. Nonetheless, passage appears unlikely prior to the November election.
