Ban the box basics for employers: fair-chance hiring explained for recruiters

This guide covers ban the box basics for employers and the recruiters who run their hiring. It explains the idea, the federal guidance behind it, where state and local rules come in, and what it changes in a day-to-day recruiting workflow. It is general information, not legal advice.

What ban-the-box means

"Ban the box" is the common name for removing the criminal history checkbox from job applications. The goal is simple. Candidates get judged on their qualifications first. Fair-chance hiring is the broader approach. Criminal history may still matter for some roles, but it is reviewed later, consistently, and with care.

At the federal level, the main reference point is EEOC guidance on arrest and conviction records. The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. The guidance applies to entities covered by Title VII, including private employers as well as federal, state, and local governments. For background on the agency itself, see the EEO basics for recruiters.

Federal, state and local layers

Federal: Title VII and EEOC guidance

The guidance describes two ways criminal history screening can go wrong. The first is disparate treatment: handling candidates differently. Evidence that an employer requested criminal history information more often for individuals with certain racial or ethnic backgrounds, or let only some candidates explain their history, would support a showing of disparate treatment.

The second is disparate impact. The Supreme Court in Griggs v. Duke Power described Title VII as reaching practices that are fair in form, but discriminatory in operation, with business necessity as the touchstone. Applying that idea to records, one federal appeals court concluded that employers must justify criminal record exclusions by showing they accurately distinguish between applicants who pose an unacceptable level of risk and those who do not. A blanket rule that screens out everyone with a record struggles to meet that standard.

Federal positions and restricted roles

Federal jobs follow their own rules. In most circumstances, individuals with criminal records are not automatically barred from working for the federal government. The federal government does impose criminal record restrictions on its workforce through suitability requirements for certain positions. Some industries also have federal restrictions tied to specific types of criminal conduct.

State and local rules

Federal guidance is one layer. The EEOC notes that employers also cite federal laws as well as state and local laws as reasons for running background checks. State and local rules differ by location, so a multi-location employer may face different requirements for the same job title. Check each location before you post. State overviews such as the California compliance overview and the Washington compliance overview are a starting point, not a substitute for counsel.

Recruiting workflow implications

Fair-chance hiring is mostly a process problem. The rule matters less than whether every recruiter and hiring manager follows the same steps, every time.

1. 1 Map roles to locations List every open role and where it is based. Note any role with a federal or industry restriction. Note which locations have their own rules.
2. 2 Clean up applications and templates Remove criminal history questions from forms where they do not belong. Review job post, screening and message templates so no one adds the question back. A shared template library makes this easier to control.
3. 3 Set the stage for any history review Decide in writing when criminal history is considered, if at all, for each role type. Put it at the same stage for everyone in that role.
4. 4 Align with your background check process If you run checks, coordinate the timing with your consumer report steps. The FCRA background check basics cover disclosure, consent and adverse action.
5. 5 Limit who sees records Only the people who need criminal history information should see it. Use roles and permissions to keep it away from interviewers who do not need it.
6. 6 Train decisionmakers The EEOC guidance recommends training managers, hiring officials, and decisionmakers about Title VII and how to apply the policy.
7. 7 Review outcomes Watch where candidates drop out by stage and location. Recruiting reports help you spot a stage or site that behaves differently from the rest.

Individualized assessment

An individualized assessment means looking at the person and the job, not just the existence of a record. In Green v. Missouri Pacific Railroad, the court barred an employer from using a conviction record as an absolute bar to employment, while allowing a prior record to be considered as a factor in individual hiring decisions.

For federal positions, OPM's mitigating criteria give a practical model. They allow consideration of:

1. The nature of the position the person is applying for or holds
2. The nature and seriousness of the conduct
3. The circumstances surrounding the conduct
4. The recency of the conduct
5. The age of the person at the time of the conduct
6. Contributing societal conditions
7. The absence or presence of rehabilitation or efforts toward rehabilitation

Private employers are not bound by OPM's rules. Still, the list shows the kind of questions a fair, documented review asks. Give every candidate the same chance to explain.

Role and location: [ ]
Job duties relevant to the record: [ ]
Conduct and its seriousness: [ ]
Circumstances candidate shared: [ ]
Time since the conduct: [ ]
Rehabilitation, work history, references: [ ]
Candidate given chance to explain: [Yes/No, date]
Decision and job-related reason: [ ]
Reviewed by: [ ]

Common mistakes

• Using one application form everywhere when locations have different rules.
• Rejecting anyone with a record, with no link to the job.
• Asking some candidates about history and not others.
• Letting some candidates explain their record but not others.
• Hiring managers raising criminal history in interviews before the agreed stage.
• Leaving background details visible to everyone on the hiring team.
• Skipping training, so each manager makes up their own rules.

Where ATS Mako fits

ATS Mako is a white-label applicant tracking system with native SMS, an integrated email client, AI candidate ranking, AI voice screening, interview scheduling and onboarding, built for high-volume and multi-location hiring. For fair-chance hiring, the value is consistency: the same stages, templates and messages across every location. It supports your process. It does not replace legal review. When you are ready, you can book a demo or review pricing.