California’s “ban the box” law goes into effect today, and could help some 7 million Californians—or one in four state residents—with criminal backgrounds. AB 218, signed into law by Governor Jerry Brown late last year, bars public sector employers from asking for information about a job applicant’s criminal background until after applicants have cleared early stages of the hiring process.
Currently, 12 states and some 70 cities and counties have “ban the box” legislation on the books, according to the National Employment Law Project. The laws are meant to fight back against the widespread, automatic exclusion of job applicants with criminal backgrounds. As the criminal justice and mass incarceration systems sweep more and more people, a disproportionate number of whom are people of color, into its grasp, the post-release prospects of those who’ve been caught up in the system dim as well.
All 10 of the state’s largest counties are already in compliance with AB 218, and in San Francisco, the policies are even being extended into the private sector, according to the NELP.
Kai Wright took a deep dive look into the background check industry, laying out the history of what is and and isn’t permissible:
Back in 1987, the Equal Employment Opportunity Commission declared that blanket bans on hiring people with criminal records were a Civil Rights Act violation. The EEOC noted that the law bars not only overt bias based on protected categories like race, but also seemingly neutral policies that nonetheless have the effect of reinforcing racial disparities. So it told employers that they can consider criminal records only as one factor in hiring, and then only when the conviction is directly related to the work. But Congress is most responsible for undermining this guidance. Following 9/11, lawmakers issued blanket bans on former felons working in a broad range of transportation jobs. States followed suit, and the list of banned occupations grew exponentially: private security guards, nursing home aides, just about any job involving kids. Former felons are now categorically barred from working in more than 800 occupations because of laws and licensing rules, one study estimates.
Partly in reaction to this growing list, and partly in response to the simultaneous explosion of the background check industry, the EEOC issued an updated guidance in 2012. The new guidance didn’t change the core idea—that blanket hiring bans based on criminal records have a disproportionate impact on black and Latino workers and thus violate the Civil Rights Act; instead, it offered employers updated details on how to stay on the right side of the law. In sum: if you conduct background checks, your hiring systems must include a granular method of confirming their accuracy and considering the specifics of a person’s case.