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House Panel Advances Bill to Expand Federal 'Ban the Box' Policy

Legislation would codify an Obama-era regulatory policy to delay when agencies ask about a job applicant’s criminal history, and extend it to apply to federal contractors.

The House Oversight and Reform Committee voted Tuesday to advance a bill that would give formerly incarcerated applicants a better chance during the hiring process for federal positions and jobs with federal contractors.

By a voice vote, the committee backed the Fair Chance Act (H.R. 1076), a bill introduced by Chairman Rep. Elijah Cummings, D-Md., that would delay asking job seekers whether they have a criminal history until the conditional offer phase of the federal hiring process for both agencies and contractors that work directly with the federal government. The legislation would codify President Obama’s policy to “ban the box” at federal agencies, initially implemented via regulations in 2016.

Before the vote, some Republicans pushed back against the measure, arguing that lawmakers should evaluate forthcoming data about the policy before setting it in law. Multiple GOP Oversight and Reform Committee members have requested that the Government Accountability Office issue a report on the regulations’ impact on federal hiring.

“There have been numerous reports—peer-reviewed and published studies—on the effects of similar laws in the states that suggest that they may not be as successful as we would like them to be, and I understand there are varying opinions [and competing studies] on that,” said Rep. Chip Roy, R-Texas. “[We] have a general idea that this reform may not be working, and this bill codifies policies that have been in place since 2016, but there is no data and no formal study of the effect of the policy already in place. So why don’t we wait until we know the outcome [of the study]?”

Rep. Jamie Raskin, D-Md., noted that while some studies have suggested that “ban the box” laws can lead to an increase in racial discrimination in hiring, other studies have refuted the notion. And Rep. Lacy Clay, D-Mo., said that banning the box takes away an avenue for employers to legally discriminate.

“The issue raised by Mr. Roy on the studies of ‘ban the box’ is really the core problem exposed by the studies: entrenched racism in the hiring process, which is expressed in the form of racial profiling of African Americans as criminals,” Clay said. The premise of the argument is that employers who profile young African American men as criminals should have access to the conviction history of applicants to dispel the racial stereotype, rather than identifying the root problem, which is both the coupling of criminality with being African American and the dehumanizing of individuals with records. But the argument seems to blame the reform.”

The bill survived multiple Republican amendments, including one from Roy which would have added the provisions of President Trump’s executive order making easier to fire federal workers, which has been invalidated by a U.S. District Court judge. That ruling is being appealed by the Trump administration. Lawmakers decided Roy's firing amendment was not germane to the legislation.

Additionally, Rep. Carol Miller, R-W.Va., introduced an amendment that would have “limited the liability” of contractors who hire formerly incarcerated people to comply with the law, and Roy suggested removing the provisions expanding the policy to federal contractors. The committee rejected both changes.