Academic journal article Missouri Law Review

Banning the Box in Missouri: A Statewide Step in the Right Direction

Academic journal article Missouri Law Review

Banning the Box in Missouri: A Statewide Step in the Right Direction

Article excerpt


Seventy million. That is a rough estimate of the number of people in the United States who have some sort of criminal record. (1) Further, it is well evidenced that some demographic groups have higher criminal record rates than the general population. (2)

FBI statistics reveal that African Americans accounted for more than
three million arrests in 2009 (28.3% of total arrests), even though
they represented around 13% of the total population in the past decade;
whites, who have made up around 72% of the population in the past
decade, accounted for fewer than 7.4 million arrests (69.1% of total
arrests). (3)

What is the significance of these numbers? Nearly 700,000 prisoners return to their communities every year, (4) and these former convicts are facing more and more challenges when reintroduced to society. (5) As portrayed by the above numbers, protected race classes are oftentimes affected the most. (6) With these racial disparities in mind, employers' consideration of criminal histories "raises concerns under Title VII of the Civil Rights Act of 1964, the landmark federal legislation that prohibits employment discrimination on the basis of, inter alia, race and color." (7)

Missouri, like many other states, has evaluated and decided to address employment discrimination that occurs as a result of requiring people with a criminal history to disclose that information during the initial phases of the hiring process. (8) Efforts to eliminate bias have been seen through the "Ban the Box" movement. The movement generally advocates removing the box applicants check if they have a criminal history, opting instead to delay this question for later in the employment process. (9) This Note analyzes the advantages and disadvantages of adopting this legislation and evaluates whether doing so leads to a lower risk of employment discrimination.


The use of criminal background information by employers is concerning because it potentially violates Title VII'S intentional discrimination provisions. These provisions "invalidate[] an employer's facially neutral policy if it has a disproportionate impact on a protected group and is not related to the job at issue or consistent with business necessity." (10) The doctrine of disparate impact allows courts to strike down employment practices "not because they were implemented with the intent to discriminate against a protected class, but because [they carry] a disproportionate discriminatory effect on those protected classes." (11)

A. Title VII and Related Case Law

The Supreme Court first defined disparate impact in 1971 in Griggs v. Duke Power Co. (12) In this case, the Court held that requiring employees to hold a high school diploma or pass general intelligence tests was not a permissible employment practice under Title VII. (13) The action was brought by a group of black employees who were employed in the labor department at the power plant, which was the lowest paying of the five departments. (14) The company instituted a new policy requiring employees to have a high school education in order to transfer out of the labor department. (15) However, after Title VII was enacted in 1965, the company started to allow incumbent employees with no high school education to transfer out of the labor department if they passed two tests--the Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test. (16) The Supreme Court started its analysis in this case by recognizing that the purpose of Title VII is to "remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." (17) This means that overt employment discrimination is prohibited in addition to employment "practices that are fair in form, but discriminatory in operation" or "neutral on their face." (18) Employers can claim a defense of "business necessity" where an employment practice that operates to exclude a protected class can be shown to relate to job performance and is thereby non-discriminatory. …

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