The Fair Chance Act has passed in the House as an amendment to the National Defense Authorization Act. The bill codifies President Obama’s 2015 “ban the box” rule, which removed the criminal history question from job applications.

The Fair Chance Act would apply to job applications in the executive, judicial, and legislative branches of federal government and extend to individual contractors working on government grants within private companies. It is important to note that the law does not stop employers from inquiring about criminal history, it simply prohibits them from doing so until the conditional offer stage. It also includes important exceptions for positions in law enforcement and national security, as well as those trusted with classified information.

Removing the criminal history question improves the likelihood of employment after incarceration. Gainful employment is crucial to reducing recidivism and successfully reintegrating into society, but many qualified applicants are dismissed before any of their qualifications are even reviewed. Nearly 1 in 3 Americans have a criminal record, and biases based on criminal history make it exceedingly difficult to move on once their sentence is served. Research by Pager, Western, and Sugie (2009) found that among similar applicants for low-wage jobs, a criminal background reduced the likelihood of a call-back by fifty percent.

As of December 2019, ban the box and similar legislation has passed in 150 cities, 35 states and Washington, DC. In addition to the majority of states, large private companies including Koch Industries, Google, and Facebook have pledged to promote fair hiring polices by banning the box on their applications.

Here in Kentucky, in 2017, an executive order was issued that banned the box on applications within the executive branch. Speaking about the order, the Governor said "let us do what we can to restore the opportunity, level the playing field and create new chances for people who have made mistakes, paid their dues and want to mainstream back into society because we're going to need them."

Louisville instituted a similar ban the box policy in 2014. It is the only city in Kentucky to do so and applies to the Louisville Metro Council and any contractors doing business with the city. States vary in their use of ban the box policies, primarily with regard to whether they are applied to private employers and if they are city or state-wide.

Source: Employment Screening Resources

Critics of ban the box policies point to several recent studies concluding that these policies result in overt racism in the hiring process. Essentially, when forced to remove the criminal history question from applications, employers will turn to race as a gauge of criminal status—further disenfranchising young black males because of their disproportionate representation in prison populations. An important caveat to those findings is that they largely used private sector employers as their research cohort. When only studying public sector employment, as Terry-Anne Craigie did in her 2017 study, you find the opposite effect. Craigie found that ban the box policies raised the probability of employment for ex-offenders in the public sector by 30 percent. She did not find any increases in racial discrimination.

The Fair Chance Act and similar legislation is a positive step forward for those reentering society and for employers who would otherwise miss out on qualified candidates. Critical to this bill is the fact that it requires the government to collect data on those that are hired with convictions—data that has been sparse to date. This bill represents thoughtful progress on fair employment and the data collection necessary to continue to evolve as we learn what works at what does not. Current research indicates that ban the box policies are effective when applied in the public sector and that employment is critical in reducing recidivism. The Fair Chance Act is a natural step in the right direction for both applicants and employers alike.

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