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There is an ongoing argument in courts, legislatures and companies across the country about whether it is appropriate to base hiring decisions on criminal background checks. The HR community in the U.S. appears to be slowing moving to remove the barriers standing in the way of job seekers with criminal histories. But the courts, as is typical for the judicial system, are a lagging indicator of this move.

Late last month the 2nd Circuit Court of appeals refused to reconsider en banc its prior panel decision dismissing a case that argued an IT services provider’s policy not to hire applicants with certain criminal convictions disproportionately affected African American applicants. In that case, the plaintiffs used national statistics from agencies such as the U.S. Department of Justice, the U.S. Census Bureau and the U.S. Equal Employment Opportunity Commission to show that arrest and incarceration rates are higher among black applicants than whites.

In denying the application for rehearing, the Court stated:

“[T]he fact that such a disparity exists among the general population does not automatically mean that it exists among the pool of applicants qualified for the jobs in question — what is true of the whole is not necessarily true of its parts…. It is not much of a stretch to imagine that arrest and conviction rates are negatively correlated with education…. So while Plaintiffs’ statistics show that African Americans are on average more likely to have been convicted of a crime than whites, that does not, without more, make it plausible that an African-American web developer with the educational and technical qualifications to work at NTT is more likely to have been convicted of a crime than his caucasian counterpart.”

You can read the opinion here: Mandala v. NTT Data, Inc. No. 19-cv-2308 (2nd Cir., Feb. 23, 2021)

While the courts are not supporting this movement very strongly, some states and cities have adopted so-called “ban-the-box” legislation, which prohibits employers from requiring applicants to indicate whether they have a criminal history. And research has indicated those types of laws are productive. A 2019 study from Case Western Reserve University revealed employment increased by up to 4% in areas where ban-the-box laws were in effect. But that same study showed some potential unintended consequences.

The study’s results showed that women—especially African-American women, who are less likely to have been convicted of crimes than black males—were hired less often in communities that “banned the box.” The researches state it is likely the case that an increase in the hiring of black men came at the detriment of black women.

Other findings from the study include:

  • Employment increases in communities that “banned the box” were particularly large in the public sector and in lower-wage jobs;

  • Positive employment effects were seen across multiple income and skill levels, as well as in urban and suburban areas;

  • “Banning the box” promoted what’s known as “upskilling”—increases in education and experience requirements—as employers substitute criminal-background questions for others to determine an applicant’s qualifications;

  • Employers stemmed a decades-long rise in the number of background checks.

Some employers have already shifted their hiring practices, engaging populations that have been discriminated against in the past. Applicants with criminal histories are one of several populations to which employers are increasingly opening up to, along with veterans and individuals with disabilities.

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