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Banning the Box… with a Blanket

July 15, 2018, marks the 20th birthday for “ban the box” legislation, e.g., the practice of removing the checkbox found on job applications for divulging past criminal records so that candidates’ qualifications can be considered without the stigma of past convictions or arrest records. Since that time, 10 states and scores of municipalities have adopted variations of the law, giving employers a patchwork of nuanced rules with which to comply or else face fines and other penalties. Notably, the EEOC weighed in with guidance in 2012, opining that policies requiring questions about criminal convictions early on in a candidate process pose a disparate impact on minorities. However, that guidance was put on hold in early 2018 after the state of Texas sued in protest, and a federal court judge agreed the EEOC overreached in its demands to employers, granting the state partial summary judgment. “Employers need to reexamine whether it is worth trying to stay on top of state-by-state, city-by-city laws in this constantly changing landscape,” says Nilan Johnson Lewis’ Joe Schmitt, who helps employers construct pre-employment procedures, assessments and screens, and defends them against claims arising out of such disputes. “They’re better off developing blanket policies nationwide that address the maximum amount of protection and re-allocating their energies into analyzing which employees are properly excluded based on their criminal record.” To speak with Joe Schmitt about “ban the box” and other pre-employment issues, contact him at or 612.305.7577.

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