Are Ban the Box Laws Actually Causing More Racial Discrimination?

If ban the box laws aren’t working, then what should we do to achieve this laudable goal?

I read with great interest an article on vox.com titled, “Ban the box” might just replace one kind of discrimination with another. The article discusses two recent studies, one by The Brookings Institution and the other by the University of Chicago, both of which concluded that ban-the-box laws have the unintended consequence of causing more discrimination against minorities, not less:

Both of them found that ban the box policies improved the hiring prospects of white people with criminal records, but not nonwhite ones. In fact, black and Latino job applicants were less likely to get hired after ban the box went into effect.

In one study, white applicants went from being only slightly more likely to get a call back from an employer than black applicants (before ban the box went into effect) to being four times more likely than black applicants to get called back, after ban the box had been implemented.

The conclusion drawn by economist Jennifer L. Doleac (who co-authored one of the studies) is that when employers can’t see who has a criminal record, they still avoid people they think are likely to have criminal records — they just have to resort to guesswork. As a result, racial discrimination against black and Latino job applicants (especially men) replaces discrimination based on criminal record.

Ban the box (currently enacted in some form in over 100 cities and counties and 23 states, and considered the law by the EEOC) will not eliminated employers’ biases. They will either create a more damaging reliance on unconscious racial biases (as these studies suggest), or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transactional costs in the hiring process).

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

  1. Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.
  2. Tax credits to incentivize businesses to hire these felons.
  3. A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., we still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).
We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support. If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com.
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