Can 'Ban the Box' Laws Stamp Out Discrimination in Hiring?

Nearly 1 in 3 American adults has an arrest record that may appear on a routine employment background check, affecting their chances of being hired. This fallout from our mass incarceration crisis leaves millions of people struggling to find work, many with old or nonviolent convictions.

In 2003, a group of formerly incarcerated people and their families had enough. They formed All of Us or None, a grassroots civil rights initiative. The group pushed for equal rights for formerly incarcerated people, and one of its seminal undertakings was the Ban the Box campaign.

Not to be confused with those "don't block the box" traffic signs, "ban the box" legislation delays background-check inquiries in the hiring process. So, instead of checking a box on the initial application to disclose criminal history, an applicant can be reviewed on his or her qualifications first, proponents say.

"Ban the box is a way for employers to see people who have criminal legal involvement like we do, which is just like any other person," Kathleen Lockwood, an attorney with the Southern Coalition for Social Justice, told TriplePundit. "Once they’ve paid their debt to society, they should be able to have the same opportunities and be seen for the qualifications that they bring to the table and not for their criminal legal involvement."

Based in Durham, North Carolina, the Southern Coalition is a nonprofit that seeks to mobilize communities of color to "dismantle structural racism and oppression." In 2011, the group worked with Durham officials to ban the box on county and city job applications. It says the percentage of people with records hired by the city increased each year since.

And Durham is not alone. To date, over 150 cities and counties removed the question regarding conviction history from their employment applications. Seven states changed their public hiring practices to reduce discrimination based on conviction records. And President Barack Obama even banned the box on federal job applications last year.

Proponents say ban-the-box policies reduce recidivism by paving the way for legal employment -- which boosts the local economy and helps the taxpayer: In 2011, the Economy League of Greater Philadelphia found that hiring 100 formerly incarcerated people would increase income tax contributions by $1.9 million over the workers' lifetimes and save $2 million annually by reducing criminal justice costs associated with recidivism.

The policies can also give people a second shot at life -- people like Clarence Harris, a father of two from Southwest Philadelphia. Harris graduated from Bucknell University with a triple major and a high grade-point average. But everything changed when he and his wife started having financial problems and he was sentenced to 18 months in prison for writing bad checks.

After his release, Harris hit a brick wall when trying to find work. "I've been on a constant job search," Harris, then 46, told the Philadelphia City Council Committee on Public Safety as they considered ban the box in 2011. "I've struggled to find employment in keeping with my experience and training."

Considering the size of our prison population -- over 2.2 million people at last official count -- it's clear we can't leave ex-offenders out of the economic equation. And despite making up less than 14 percent of the U.S. population, African Americans represent nearly half of U.S. prisoners, so this is clearly a racial justice issue as well as an economic one.

Ban the box and discrimination in hiring

In short, ban-the-box policies are aimed at reducing hiring discrimination against people with records. "Ban the box creates an even playing field for people with criminal legal involvement as compared to people without that involvement," Lockwood said simply. She pointed to Durham, where the hiring of ex-offenders is now up nearly sevenfold, as evidence that the policy is working.

But over the summer, a wave of studies came out challenging the efficacy of ban-the-box initiatives, claiming such policies actually increase discrimination against another group: young black and Hispanic men without records.

In a multi-year study, two researchers from Princeton University and the University of Michigan sent out 15,000 fictitious online job applications to employers in New Jersey and New York City, both before and after they introduced ban the box.

Unsurprisingly given prior research, white applicants were more likely to receive a callback than black applicants. But the researchers insist ban-the-box policies widened this gap: "Before BTB, white applicants to BTB-affected employers received about 7 percent more callbacks than similar black applicants, but BTB increases this gap to 45 percent."

Another study, published in July and updated this fall, came to a similar conclusion: "BTB policies decrease the probability of being employed by 3.4 percentage points (5.1 percent) for young, low-skilled black men, and by 2.3 percentage points (2.9 percent) for young, low-skilled Hispanic men."

"This is consistent with the idea that when employers don't have more specific information about an individual's criminal history, they use race as a proxy for criminal status," Jennifer Doleac, lead author of the study and a professor at the University of Virginia, told TriplePundit in an email. "Clearly this group of men faced racial discrimination before, but what we're finding is that BTB increases employers' discrimination based on race (combined with age and education level)."

It's worth noting that these studies focused on ban-the-box policies which include a mandate for private-sector employers. The vast majority of such policies focus solely on city, county or state employees. All the same, ban-the-box proponents were quick to criticize the research. Lockwood put her argument simply in a September op/ed, saying: "Systemic racism, not ban the box, is the problem."

The National Employment Law Project published a point-by-point rebuttal to the studies in August. Maurice Emsellem and Beth Avery of NELP had plenty to say about the researchers' respective methodologies. But, echoing Lockwood, their concerns hinge predominantly on that last bit: using race as a proxy for criminal history. They say the researchers are too bogged down in traditional economic thinking to see what's right in front of them.

"The premise of the argument is that employers who profile young African-American men as 'criminals' should have access to the conviction history information of applicants to dispel the racial stereotype. Rather than identifying the root of the problem — which is both coupling criminality with being African American and the dehumanizing of individuals with records — the argument blames the reform," Emsellem and Avery argued.

"This distinctly economic framework, which views employers as entirely rational actors, fails to appreciate the extent to which negative racial stereotypes continue to plague the hiring process."

A long, ugly history of hiring discrimination

People of color, predominantly young men, have endured decades of hiring discrimination -- independent of criminal involvement. Ongoing research indicates white men with criminal records are still more likely to get jobs and callbacks than black and Hispanic men without records (see these studies from 2003, 2008 and 2014).

BTB proponents say extending protections to people with criminal records only pulls back the veil on this discrimination -- further underscoring our need to address it. "Even accepting the questionable conclusions ... at face value, they merely reinforce the need for stronger anti-discrimination law enforcement and further policy reforms to help eradicate the underlying discrimination, not a rejection of ban-the-box protections," argued Emsellem and Avery of NELP.

In 2012, the Equal Employment Opportunity Commission (EEOC) took what NREL calls a "significant step to address race discrimination in hiring" by updating its guidance on the use of arrest and conviction records. In announcing the change, EEOC Commissioner Victoria Lipnic (a Republican appointee) directly addressed employers who may be tempted to use race as a deciding factor for want of information about criminal history.

“Where, in fact, in the absence of a criminal background check an employer chooses to use race as a proxy for criminal history, that employer is patently violating federal civil rights law," Lipnic emphasized in her testimony before the U.S. Commission on Civil Rights. "Were such a charge brought to the Commission and found to be true, I would have no difficulty bringing the full force of the agency to bear on such a transgressor.”

But therein lies another problem, say experts on both sides of the debate. After all, racial discrimination in hiring has been illegal on paper for decades, but research continues to show it still happens. Lockwood explains why: "When it comes to filing those claims with the EEOC or filing a federal lawsuit, it’s a huge undertaking for a person with a criminal record, a nonprofit that’s likely going to be serving these people or a pro bono attorney. For that reason, the federal accountability is really not there for employers."

Duleac took things a step further: "I know the folks at NELP mean well, but their conclusion that we can avoid the negative effects of BTB simply by increasing enforcement of anti-discrimination laws is naive and unhelpful," she told TriplePundit. "... Anti-discrimination laws have been in place for a while and are notoriously difficult to enforce."

The way forward

The arguments against ban the box seem to present a nightmarish game of Whack-A-Mole that's rife with contention for social justice advocates: Stamp out discrimination and oppression in one area, and it will only rear its ugly head in another. It's a cycle people of color know all too well.

So then what are we do to? When it comes to broader policies that stamp out discrimination, experts on both sides of the ban-the-box debate agree on more than you may expect. "The end goal isn't BTB," Doleac insisted. "It's improving labor market opportunities for disadvantaged populations. We need to keep our eye on that ball."

She suggests increasing the amount of information provided to employers rather than reducing it. For people with records, this includes job training, apprenticeship and other programs that result in a certificate -- which she says "communicates job readiness" to employers. She also touts the benefits of expanding access to record expungement, something NELP also supports, as well as court-issued "employment certificates."

NELP also makes no secret of the fact that ban the box was never meant to be a cure-all -- and that far more work lies ahead. "Ban-the-box reforms were never intended as a panacea for the severe employment barriers facing people with records, and certainly not for the entrenched employment challenges of young men of color locked out of the job market," wrote Emsellem and Avery of NELP. "Removing criminal history inquiries from job applications is only one part of a comprehensive fair-chance strategy," which also includes record expungement and increased enforcement of anti-discrimination policies, they say.

"Each tool individually is important, but they have to work together to actually make an impact," said Lockwood of the Southern Coalition. But she insisted a mindset shift beyond policy is necessary to truly move the needle on these systemic issues: "As a society, if we can’t come together to say, 'Once you’ve paid your debt in the criminal justice system, we accept you and we recognize that you still have value,' ... none of those efforts individually are really going to make an impact."

The bottom line

Independent of policy changes to correct it, the fact is that recidivism rates in the U.S. remain alarmingly high: More than half of recently released people will re-offend within the first year. And studies show that a lack of legal employment is the No. 1 reason people re-offend.

This unavoidable reality has policymakers on both sides of the aisle in search of solutions. And in that context -- what NELP described as the "rallying cry" of ban the box, originally voiced by All of Us or None -- has undoubtedly been successful.

The ban-the-box debate will likely rage on as researchers continue to analyze these fairly new policies. "After decades of mass incarceration with little emphasis on rehabilitation, it's our fault as a society that this group faces substantial challenges (low education, emotional trauma, substance abuse, untreated mental illness) -- not employers' fault," Doleac insisted. "If we're serious about helping people with records build stable lives, we'll need to invest serious resources to make up for decades of neglect."

But NELP warned that such research must be undertaken cautiously:

"The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color."

One thing is for certain, forward-thinking companies aren't waiting for regulations when it comes to rooting out bias and discrimination in hiring -- and research shows they're reaping benefits on the bottom line.

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