Compliance

Ban-the-box law expands to federal contractors

Most federal contractors are now prohibited from inquiring about an applicant’s criminal history before extending a job offer.
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Francis Scialabba

· 3 min read

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Good news for job applicants trying to escape the long shadow of the criminal-justice system in the US, which disproportionately incarcerates minority Americans for infractions (at a rate of five Black adult Americans to one white adult, according to The Sentencing Project). As of December 2021, federal contractors generally can’t ask about a job applicant’s criminal history before extending conditional offers (exceptions include if a criminal record check is required by law, or if the job requires access to classified information pertaining to law enforcement or national security). The Fair Chance Act is part of the National Defense Authorization Act for Fiscal 2020.

The law is yet another in the growing trend toward “banning the box,” a policy which earned its nickname by removing the check-box asking if applicants have a criminal record from job applications. At least 37 states across the US have similar policies that apply to private employers, and Olaoluwaposi Oshinowo, special counsel with Wiley Rein LLP, told Bloomberg that these laws are designed to make it easier for people with a criminal record to get a foot in the door toward gainful employment.

“‘Ban-the-box’ laws certainly have the effect of making a path for people who otherwise wouldn’t have thought they had access to a certain classification of jobs,” Oshinowo said. People with records can “show you who they are and what they’re about.”

But, but, but…Some critics of the law warn it could backfire when it comes to helping minority communities. 

Jennifer Doleac, assistant professor of public policy and economics at the University of Virginia, called for the policy to be repealed and replaced—not expanded—at an Urban Institute panel in 2016. Doleac says her 2016 research found ban-the-box policies led to a 5% reduction in employment for young Black men without a college degree. The problem seemed to be implicit bias.

“The fundamental problem with BTB is that when employers can’t ask job applicants about their criminal histories, many assume that young, low-skilled Black and Hispanic men are likely to have criminal records and, as a result, don’t call them in for interviews,” Doleac said during the panel.

In 2020, Doleac released a peer-reviewed study confirming that banning the box led to worse hiring outcomes for applicants of color without records—particularly those without college degrees.

Doleac suggested investing in policies that provide “more information about job applicants with records or improving the average ex-offender’s job readiness.” She hoped such policies could benefit ex-offenders without “the unintended consequences” of banning the box.—SV

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