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The Oklahoma Legal Group Blog

Obama agrees to 'Ban the Box' but will it be enough to end hiring discrimination?

Adam Banner - Tuesday, November 24, 2015

For someone with a criminal record, filling out a job application can feel like an exercise in futility. Every time the question about past convictions appears, there is a hesitation, a reminder that admitting the prior conviction could exclude the applicant from the job, regardless of qualifications, relevance of the offense, or a complete lifestyle change that reflects no chance of repeating the offense.

Difficulty in finding meaningful employment after a criminal conviction can create a vicious cycle that for some becomes a revolving door in and out of jail. Some people are unfairly punished for their crimes far beyond the completion of any probation or sentence. Because of this, groups around the nation are calling for their states to "Ban the Box"--to prevent employers from asking applicants about their criminal records.

Early this month, President Barack Obama announced that the federal government will "ban the box" by delaying the point in the hiring process in which government agencies can ask about a person's criminal record. Often, employers ask about felony convictions in the initial application step. When this happens, a person never even has a chance to prove his or her qualifications or suitability for the job. By delaying the question, an applicant may be able to prove his or her worthiness for the job so that a criminal conviction seems of little consequence to the employer.

Still, if it comes down to two applicants of equal merit, the criminal conviction is likely to disqualify one from consideration when compared to the applicant without a criminal record. So is delaying the box really the same thing as banning the box?

In an op-ed piece for the Ft. Worth Star-Telegram, Mike Coffey writes:

Banning the box only delays the decision to eliminate a candidate from employment consideration. If an employer isn’t going to hire someone because of the risk associated with past conduct, the level of charm a candidate brings to the interview should not and typically will not change the ultimate outcome. The delayed inquiry just wastes the time of the employer and candidate without yielding any societal benefit.

But Coffey's article is not just a criticism of delaying employer's questions about criminal history. He indicts the whole "ban the box" effort, saying that removing the question of criminal history places the responsibility of rehabilitation and the problem of recidivism on the shoulders of employers. Instead of banning the box, he says, more emphasis should be placed on the criminal justice system to improve access to education and substance abuse treatment, to reconsider mandatory minimum sentencing policies, and to create better diversion programs. These measures, he says, will decrease recidivism far more than simply "banning the box" to create fair hiring practices for those who have served their sentences.

If employers are still asking about criminal records, though, will they even know that the applicant went through substance abuse treatment or was only sentenced to a year in jail rather than 5 years in prison for a drug crime? Not likely. And if they do know, will they even care? Or do they simply see "felony conviction" and immediately exclude the applicant as a potential hire.

In Oklahoma, there is a way to "ban the box," but it happens at the hands of the applicant rather than the employer. If a person is granted a record expungement under 22 O.S. § 18, the offense is deemed "never to have happened." After describing expungement eligibility requirements in  Section 18, state law explains the process and results of the expungement in the subsequent section. Section 19 includes this statement with regard to employment applications following record expungement: "Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person."

In other words, if the record is expunged, under Oklahoma law, the applicant does not have to divulge the past record on an employment application. In Oklahoma, the only way to truly ban the box is through record expungement. Learn more about Oklahoma expungement laws here






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