How Ban the Box Can Lead to Even More Racial Discrimination by Employers

On the question of whether preventing employers from asking about criminal history really leads to more equitable hiring practices, the evidence is disturbingly mixed.
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As concerns over racial disparities in the United States' criminal justice system intensify, researchers are starting to investigate the effectiveness of some downstream solutions. Included in those solutions is "Ban the Box," a movement that demands employers stop asking job applicants about their criminal histories. The rationale is simple: An employer should consider an applicant's current qualifications for a particular job before investigating that applicant's criminal past. (Once an interviewee is called back, the employer can then inquire about that background.)

Hawaii was the first state to pass a Ban the Box (BTB) law, in 1998; Minnesota followed suit in 2009. Between 2010 and 2015, 14 other states and the District of Columbia passed laws implementing some form of BTB legislation. As of 2016, 21 states were on board with BTB.

It's still unclear, however, whether the policy is achieving its intended effect of increasing employment chances for those most likely to be burdened with a criminal record—namely, African Americans.

BTB measures are designed to address racial inequities in hiring for good reason. According to the National Association for the Advancement of Colored People, African Americans are five times more likely to be incarcerated than whites. The rate of imprisonment for black women is twice that of white women. Although African Americans and whites take illicit drugs at similar rates, the likelihood of arrest and imprisonment for blacks is six times that of whites.

All of which is to say: African Americans (and Hispanics) are more likely to suffer from a self-incriminating box when they fill out an application for a job. Given that, according to one study, knowledge of a criminal record leads to a 50 percent reduced chance of being called back for an interview, one can see why, in 2004, efforts were launched by several civil rights groups to, as they called it, "Ban the Box."

The idea has even trickled down to university applicants. On May 9th the Daily Princetonian reported that "student organizations hosted the 'Ban the Box' town hall to encourage student discussion and awareness about the University's inquiry into applicants' conviction history in the undergraduate application process."

Research on the effectiveness of BTB has offered mixed conclusions. On the positive side, BTB's success in integrating ex-offenders into the labor force has resulted in a sharp reduction in repeat offenders in Honolulu County, Hawaii. The authors of this study, done in 2014, concluded: "By mollifying the social stigma attached to a criminal record during the hiring process, Hawaii's BTB law proved to be extremely successful in attenuating repeat felony offending."

But Hawaii might be an outlier. According to the University of Virginia's Jennifer Doleac and the University of Oregon's Benjamin Hansen, BTB has backfired on black and Hispanic men, aged 25 to 34, who lack a college degree. This cohort was, according to Doleac and Hansen, actually "less likely to be employed under BTB policies." Doleac and Hansen speculate this is because employers who know they cannot check criminal histories will "guess who the offenders are" (probably by making assumptions about their names) and choose not to interview them. Low-skilled black men, in the final analysis, are 5.1 percent less likely to be employed under BTB regulations. The corresponding figure for Hispanic men is 2.5 percent.

Other research further suggests why BTB has counterproductive consequences. In another study, researchers submitted 15,000 fake applications to employers in New York City and New Jersey. The applicants had "a distinctly black or distinctly white name." Previous studies led researchers to expect some level of differentiation based on racial assumptions about specific names. For example, in one study job applicants with black-sounding names had to send out 15 applications before getting a callback. Whites only had to send out 10.

But here the results far exceeded that discrepancy. It showed that, before BTB, white applicants were 7 percent more likely than black applicants to be called back for an interview; after BTB they were 43 percent more likely to be asked back.

The authors do not deny that the presence of a criminal record reduces job opportunities for all applicants. Applicants with no record were 63 percent more likely to be called back. But their findings show that a discrepancy can emerge when BTB is enacted. They explain this gap by hypothesizing that "employers are relying on exaggerated impressions of real-world racial differences in felony conviction rates." They conclude that, in all likelihood, "BTB policies encourage racial discrimination."

The results remind us that, while it's important to consider policies intended to address the impact of racial disparity in the criminal justice system, even the best intentions can go awry when the underlying racism persists.

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