There is a theory behind the Opportunity to Compete Act, which is also known as Ban-the-Box. Fair employment practices improve society.
In most cases, in the initial application process, people with criminal backgrounds cannot be eliminated from consideration because they have a criminal history. Employers cannot ask applicants about their criminal background until after they are interviewed.
When does the initial employment process begin and end?
The initial process starts with the job posting. It ends after the first interview. After that interview, criminal background checks are legal.
Why is Ban-the-Box necessary?
Criminal background checks can discriminate against applicants. According to studies, members of some racial groups are arrested more often than members of other racial groups. When people from those groups are not allowed to interview for jobs, there can be a negative impact.
The commission that enforces the Civil Rights Act of 1964 determined that criminal background checks can be discriminatory. Criminal histories cannot be used to screen for employment unless a criminal background would affect the job duties or impact business necessities.
What employment practices are illegal in the hiring process?
There are two discrimination theories that apply:
- Disparate treatment. An employer cannot refuse employment to someone from a protected class who has a criminal history and then hire someone with a similar criminal background from an unprotected class.
- Disparate impact. Policies and practices cannot screen out protected groups.
Some positions are exempt from Ban-the-Box
Some employers are within their legal rights to ask about criminal backgrounds. That includes positions that:
- Require a criminal background check by laws, regulations or rules.
- Prevent a person from holding the job.
- Require a clean criminal history for the company to conduct business.
Employers must follow Ban-the-Box laws. If they do not, their hiring practices might be illegal.