Ban The Box: Some Companies Stop Asking Job Applicants About Criminal History

Big box retailer Target said it will remove questions about prior arrests on its job applications, but many companies still ask. Host Michel Martin speaks with Madeline Neighly from the National Employment Law Project and Elizabeth Milito from the National Federation of Independent Businesses about the pros and cons of the practice.

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MICHEL MARTIN, HOST:

This is TELL ME MORE from NPR News. I'm Michel Martin. Coming up, Boko Haram has been continuing its attacks against civilians in northern Nigeria. So we're going to check in with NPR's Africa correspondent Ofeibea Quist-Arcton. She recently visited the town where the group was founded and is based, and she'll tell us what she learned. And that's in just a few minutes. But first, we want to continue this look that we've been having at criminal justice issues.

And now we're going to focus on job opportunities for those who've served their time. Target, which is the country's second-largest retailer, recently announced that it would remove questions about criminal history from its job applications. This change comes after a grassroots campaign called Ban the Box succeeded in changing Minnesota law on the issue. Minnesota is one of 10 states and 50 cities that have adopted policies that prohibit job applications from asking about criminal convictions or arrests - that according to the National Employment Law Project, which has been lobbying to end the practice. We wanted to know more about this, so we've called Madeline Neighly. She's a staff attorney for the National Employment Law Project, or NELP, and she's with us now. Madeline, thanks so much for joining us once again.

MADELINE NEIGHLY: Thank you so much for having me.

MARTIN: And for additional perspective, we've called Elizabeth Milito. She's senior executive council at the National Federation of Independent Business, and that's an organization that represents small and independent businesses around the country. Welcome to you. Thank you so much for joining us.

ELIZABETH MILITO: Thank you so much, Michel.

MARTIN: So, Madeline, I'll start with your group. Why is your group lobbying states to stop asking about criminal history on the application? Why do you think that that's so important?

NEIGHLY: I think there are a few main reasons why we find this to be so important. The first is that, when folks have served their time, they really need a chance to reintegrate into their community, support themselves and their families, and be back to, as much as possible, the community - to be a part of that.

And so we know that access to good jobs is a way in which people can break that cycle and break out of recidivism and get back into it. We also know, as we heard before, that people of color are much more heavily targeted by the criminal justice system, and so that when we have sort of unnecessary barriers placed on jobs or other access because of criminal records, then it's going to more negatively impact communities of color.

MARTIN: Well, but the law does not prohibit any employer from doing a background check. So you can still do a criminal background check before hiring. What would prevent companies from eliminating people at that stage? I mean, this is just at the initial stage, so why do you feel that that matters?

NEIGHLY: This is an opportunity for folks to put their qualifications forward and to be judged on those first. You're right, Ban the Box says nothing about whether or not the employer is going to do a criminal background check later in the process. This is merely to give all folks the opportunity to describe themselves and their qualifications and be judged on those first. And then later in the process, if the employer does the criminal background check at that time, they're much more likely to comply with the guidance set out by the Equal Employment Opportunity Commission that explains how employers need to take this information into account. Looking at, is it job related? You know, what's the conviction? How is that related to the job in question, instead of just disqualifying folks first off.

MARTIN: Up front? OK.

NEIGHLY: Exactly.

MARTIN: Elizabeth, your organization represents small businesses, as you said. And now, does your organization oppose this kind of legislation on its face?

MILITO: Well, our - the small business owners with whom I work are very committed to providing a workplace that is free from discrimination. But it can be a significant challenge for a small business owner - when you think about it - who rarely employs a human resource professional, to keep up with the ever-changing landscape - you know, changing federal, state and local laws now, too. And criminal checks provide a very necessary and important component in the hiring process for many businesses.

MARTIN: So you're saying that - you were telling us earlier that questions about criminal history are more critical for smaller companies than for larger businesses like Target. Why do you say that?

MILITO: Well, I don't know that it's more critical. In some industries, it is very critical. In most states, any business that operates childcare, health care, transportation is required by law to perform a criminal background check. And our position is really that one size doesn't fit all. So a Ban the Box is not appropriate because in some industries businesses cannot consider individuals with certain criminal convictions.

MARTIN: Madeline, what about that?

NEIGHLY: Well, most - in fact, I believe all of the Ban the Box policies that have been passed actually have exclusions that specifically state that if you are required to do a background check under state or federal law, then you're exempted. You know, they specifically list out law enforcement positions and other positions where we know up front - like childcare - people are going to be checked and have to disclose that information. So they're usually exempted from the policies.

MARTIN: You know, Madeline, we've talked on this program and a number of researchers have documented, through surveys of employers and other means, that one of the elements of discrimination against certain populations, particularly young men of color - black men, in particular, Latino men - to a degree, is the incorrect assumption that employers make that they have criminal histories. And so the question I have is whether banning the box could in some ways have a reverse effect, which is that they would use then race or ethnicity as a proxy for criminal history even more than they have been doing unconsciously now.

NEIGHLY: You know, I've heard that raised before, and I think that we can't deal with intentional discrimination by allowing a disparate impact. You know, by allowing then this claim that we can use criminal records instead because it's still excluding people of color disproportionately and excluding people unnecessarily. So again, this is clearing the way for everyone to put their qualifications first and hopefully be judged on that. I think we still need to target this idea that people are going to be disqualified simply based on their race, but this isn't the way to get at that.

MARTIN: Elizabeth, I know that on the other side of it, we often hear from businesses about the need to hire the most motivated people, particularly when they don't have a lot of jobs to offer and every role is critical, nobody can hide. Is it possible that this might open up an opportunity to have more motivated workers, that people are being kind of discriminated against, even unconsciously, because people aren't giving them the opportunity to display their credentials, to show what they can do or at least put their argument forward?

MILITO: Well, I would say that not - that's a good point - but not all businesses, you know, perform any sort of background check. But those that do the background check, including the criminal check, is just one component that they consider. They're looking at - as you pointed out - their qualifications, their abilities, their skills, their past work history. All of those things are very important considerations in hiring the most qualified individual.

MARTIN: So is your - is the contention of your group that their - what is your - is your position that these kinds of laws should not exist? That employers should be able to ask at the earliest stage of the process whether someone has a criminal history?

MILITO: And I would just say that the one-size-fits-all doesn't fit. So in some industries, it is appropriate, we would argue, to ask at the outset on the written application about...

MARTIN: What about arrests? Does that go for arrests as well as convictions, or does it...?

MILITO: It would not pertain to arrests, no. We're talking about convictions. And as I pointed out, in some industries, you know, businesses cannot hire an individual. If you're a child care or a healthcare facility, you just can't consider a candidate that may have been convicted. Financial institutions are prohibited by federal law from hiring anybody...

MARTIN: What if the offense has nothing to do with the job that you're now doing? I mean, what if you're in a healthcare position, say, or in a child care position and the arrest or the conviction was for financial fraud and it's not relevant, you're not handling money. That still applies?

MILITO: Well, it depends on the state law 'cause in some states it would. And I think this goes to Madeline's point, too. She mentioned the Equal Employment Opportunity Commissions on guidance, which we certainly commend to our members, which does require an individualized assessment where appropriate, too. So you're looking at the severity of the offense, how long it's been and the nature of the job. So those are important.

MARTIN: So, Madeline, where are you headed with this advocacy? As we've mentioned, according to your data, 10 states and 50 cities have now enacted this. Do you see this as the high water mark, or do you feel that other places are open to this initiative?

NEIGHLY: We know that other places are open. This has been introduced in many other states, and I think in the next year, we're going to see this happening more and more. I think what we're also seeing is a lot of these policies started out by applying to the public sector, and we saw that, you know, the world didn't end. Everything kept going and, in fact, it was better for our communities. So they're starting to go back and take a look at expanding it to the private sector, which is what the state of Minnesota just did, which might have been, in part, of what encouraged Target to go ahead and do this across the country.

MARTIN: Well, it's an important story and we will keep our eyes on it. And so I want to thank you both for coming and hopefully you'll both keep us up to date on your different perspectives on this issue. Elizabeth Milito is senior executive counsel of the National Federation of Independent Business. She was kind enough to join us in our Washington, D.C. studios. Madeline Neighly is staff attorney for the National Employment Law Project. She was kind enough to join us from our studios in New York City. Thank you both so much for speaking with us.

NEIGHLY: Thank you.

MILITO: Thank you.

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