Get Out of Jail Free? Preventing Employment Discrimination Against People with Criminal Records Using Ban the Box Laws

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Some legal scholars have argued that Ban the Box laws are inherently ineffective in preventing employment discrimination against people with criminal records. It is true that certain provisions in many of the existing Ban the Box laws limit their efficacy. For example, many states’ policies (including those of California) apply only to public employers. However, a model Ban the Box law can be crafted by synthesizing the most effective elements of existing laws. When adopted at the city or state level, this model Ban the Box law would be a highly effective means of providing legal protection for job applicants with criminal records.

Part I of this Comment describes the problem of employment discrimination against people with criminal records, exploring the prevalence of this practice, some of the reasons and motivations underlying it, and its consequences for job applicants with criminal records, especially the troubling disparate impact on African American and Hispanic men. Part II examines the limitations in the existing legal framework for preventing employment discrimination against people with criminal records under Title VII and the disparate impact doctrine. Part III details the Ban the Box movement, and compares the provisions of various versions of Ban the Box laws that have been enacted. Part IV synthesizes the most effective elements of enacted Ban the Box laws to propose a model Ban the Box law. Finally, the Comment concludes with an argument that this model Ban the Box law would provide a highly effective means of protecting job applicants with criminal records from employment discrimination.

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