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Banning the Box: Cities and States Restrict Employers’ Ability to Ask Applicants About Criminal History

On May 20, 2014, and effective starting on November 18, Rochester became the second city in New York, after Buffalo, to “ban the box“–that is, to make it illegal for all employers to ask job applicants about their criminal background.

The principal goals of these new regulations have to do with reducing the cost of the criminal justice system. It is well known that a stunningly high percentage of people in the U.S. prisons and jails are extremely overcrowded, and our recidivism rate–the percentage of prisoners who end up back in prison–hovers around 52%. As Buffalo Councilmember Adam C. McFadden notes, since “one of the leading factors in preventing recidivism is employment, this measure will help to eliminate discrimination against ex-offenders and help put people to work.” When employers exclude all candidates with criminal history at the first stage of the application process, people with former felony convictions or arrest records have little chance of reintegration and a far greater risk of re-offending.

The key section of the new Rochester Ordinance reads as follows:
It shall be unlawful discriminatory practice for the City, its vendors, and any employer located within City limits to make any inquiry regarding, or to require any person to disclose or reveal, any criminal conviction during the application process. The ‘application process’ shall be deemed to begin when the applicant inquires about the employment sought and shall end when an employer has conducted an initial employment interview or made a conditional offer of employment.

There are some intuitive exemptions written into this legislation, and its authors are quick to point out that after the first stage of the employment process employers will still be free to investigate applicants’ criminal history.

Washington D.C. passed a similar–but much stronger–“ban the box” measure on May 29, 2014, which imposes more restrictions than Rochester’s law and specifies them in more detail. In addition to prohibiting employers from “making any inquiry about a person” or “taking any adverse action against (an) applicant…regarding any criminal conviction prior to making a conditional offer of employment,” the law goes on to specify that a conditional offer of employment cannot be withdrawn on the basis of criminal history if this history constitutes a “legitimate business reason” for this withdrawal. In addition, the law states that “an arrest can never serve as the basis for an adverse action or withdrawing an offer of employment, and arrest records are to be given no weight in the determination of whether a legitimate business reason exists to withdraw the offer.” Finally, the law specifies that anyone who has a conditional offer of employment withdrawn is entitled to i) “copies of any and all records procured by the employer in consideration of the applicant, including criminal records,” ii) a written “statement of denial” which fully articulates the employer’s “legitimate business reason” for withdrawing the offer, and iii) notice of the applicant’s right to file a complaint, with protection against retaliation, with the Office of Human Rights.

If you believe you have been subjected to discrimination by a prospective employer based on your criminal history, please contact The Harman Firm, LLP.

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