OUR COMMUNITY

REQUESTS FOR BACKGROUND CHECKS

By LaTánya Warren, SHRM-CP

Before COVID cut a swathe through the economy, our unemployment rate was the lowest it had ever been, forcing companies to explore untapped talent pools and “non-traditional” candidates such as applicants with criminal histories.

Second-chance hiring is a great opportunity for both organizational and individual growth. Studies show that employment is the single most important factor in reducing recidivism. When companies consider all qualified candidates, even those with a criminal record, they grow stronger and more diverse because of it.

Because Black and Latino men are arrested and convicted at disproportionately higher rates than

Caucasian men, asking about criminal records has a disproportionate impact on them. Research shows that 17% of White Americans with a criminal record get called back after a job interview, compared to 5% of Black Americans with the same history. This is an example of disparate impact discrimination which happens when a seemingly neutral policy disproportionately affects members of a particular demographic.

All of Us or None of Us, a national civil rights movement of formerly incarcerated individuals and their family, started the Ban the Box campaign in 2004 to address that hiring disparity. The “Ban the Box” movement advances employment opportunities for people with criminal records by eliminating the criminal history question on job applications. The intent behind the growing Ban the

Box movement is to delay the criminal history inquiry (the box applicants check or don’t check) until later in the hiring process to allow ex-offenders the opportunity to present their true qualifications for jobs, and for employers to consider their applications in light of those qualifications, without having a criminal history prejudice the process.

Ultimately, the campaign challenges the stereotypes of people with conviction histories by asking employers to choose their best candidates based on job skills and qualifications, not past convictions. As of June 2020, 35 U.S. states and more than 150 cities and counties have passed some form of Ban the Box laws, according to the National Employment Law Project.

A few states take the Ban the Box law a little further by requiring employers to conduct individualized assessments of an applicant’s criminal history to determine whether the criminal record justifies denying employment. This assessment includes comparing the nature of the criminal record with the nature of the job, reviewing the severity of the offense as well as how much time has passed since the offence occurred. The EEOC has warned against categorically denying employment to applicants with criminal records and has issued guidelines to follow in order to avoid discrimination and has already begun prosecuting employers who have a blanket ban on hiring people with felony convictions. Employers using third-party vendors to obtain criminal history reports also have obligations under the Fair Credit Reporting Act.

Black HR professionals can be at the forefront of this movement by assessing barrier crime lists to identify discriminatory hiring practices, addressing trends of denying employment to Black and Latino applicants with criminal records and identifying opportunities to mitigate risk. We should be champions of fairer hiring practices as we are more likely to be impacted by the criminal justice system than any other demographic. u