Last week, The Atlantic reported that the city of Los Angeles is on the verge of implementing a “Ban the Box” initiative that would bar some private employers from asking job applicants about their criminal histories. In the face of growing awareness of criminal justice issues, a number of city and states have passed similar laws in the last few years. (The state of California already has a law on the books that forbids government employers from asking applicants about any criminal history until later in the employment process.) At the national level, President Barack Obama has urged Congress to pass Ban the Box legislation, and last year directed the Office of Personnel Management to “modify its rules to delay inquiries into criminal history until later in the hiring process.”
There’s little doubt that Americans with criminal records face substantial discrimination in the formal labor market. In the most oft-cited study on the topic, published in the American Journal of Sociology in 2003, the sociologist Devah Pager found that ex-offenders in Milwaukee were substantially less likely to be considered for employment for entry-level jobs than non-offenders. Pager also found substantial racial discrimination in the labor market. “Blacks are less than half as likely to receive consideration by employers, relative to their white counterparts, and black nonoffenders fall behind even whites with prior felony convictions,” Pager concluded.
This discrimination cripples ex-offenders and their families. Without gainful employment, the formerly incarcerated struggle to meet their financial obligations. They end up relying on family and friends for financial assistance or, worse, they fall back into old habits and end up in prison again. In a study conducted by the Safer Foundation, former prisoners who received employment services and obtained employment had an 18 percent recidivism rate; ex-offenders who didn’t receive such services, meanwhile, had a recidivism rate of 52.3 percent.
The evidence on the employment effects of Ban the Box legislation is still emerging. In 2011, the city of Durham, North Carolina, enacted Ban the Box legislation (followed in 2012 by the county of Durham). Between 2011 and 2014, the percentage of people with criminal records hired by the city and county of Durham increased substantially. In the city of Durham, only 2.25 percent of hires in 2011 had a criminal record. In 2014, 15.53 percentage of hires did.
Several recent academic papers, however, suggest that Ban the Box policies also have the potential to backfire. In a working paper released earlier this year, the economists Jennifer Doleac and Benjamin Hansen found that local Ban the Box policies decreased the likelihood of employment by 5.1 percent for young, low-skill black men, and by 2.9 percent for comparable Hispanic men.
Similarly, in a working paper also released this year, Amanda Agan and Sonja Starr report the results of a field experiment in which 15,000 fake job applications were submitted online to employers in New Jersey and New York City before and after the adaptation of Ban the Box policies. They found that the race gap in employer callbacks grew dramatically after the implementation of Ban the Box policies. “Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%,” the authors wrote.
So what’s going on? Doleac explains in a recent blog post for the Brookings Institution:
If you take information about criminal records away, what happens? Employers are forced to use other information that is even less perfect to guess who has a criminal record. The likelihood of having a criminal record varies substantially with demographic characteristics like race and gender. Specifically, black and Hispanic men are more likely than others to have been convicted of a crime: the most recent data suggest that a black man born in 2001 has a 32% chance of serving time in prison at some point during his lifetime, compared with 17% for Hispanic men and just 6% for white men. Employers will guess that black and Hispanic men are more likely to have been in prison, and therefore less likely to be job-ready.
In other words, in the absence of information about an applicant’s criminal history, some employers will just avoid black and Hispanic men altogether.
It’s past time for the United States to both reform its criminal justice system and improve the re-entry process for ex-offenders, and there’s almost certainly a role for Ban the Box-type policies in this process. But the latest research suggests that we should proceed cautiously: Forbidding employers from asking about an applicant’s criminal history won’t eliminate discrimination.
