Will "ban the box" backfire?

Cara Crotty

Ever since the Equal Employment Opportunity Commission updated its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions in 2012, many state and local jurisdictions have adopted laws limiting employers’ ability to inquire about applicants’ criminal histories. And many employers not covered by those laws are voluntarily adopting policies against considering criminal information until after an offer of employment has been made. See this article in the Wall Street Journal explaining why Koch Industries did just that.

The purported rationale for the “ban the box” movement is that employers are less likely to reject candidates if they do not learn about their criminal history until later in the selection process. I have always been skeptical of this theory.

In my experience, most employers use deliberate and consistent criteria for determining whether a candidate’s criminal history is a deal-breaker -- regardless of the point in the hiring process at which the criteria are applied. As long as an employer complies with the EEOC’s substantive guidance (for example, making an individualized assessment of the person's criminal record in light of the job applied for), it really shouldn’t matter when in the hiring process the criminal background information is considered.

World's Best Boss.flickrCC.KumarAppaiah
Mug shot.

A recent article in UVAToday discussing the potential “unintended consequences” of banning the box is intriguing – as well as disturbing. According to Jennifer Doleac, assistant professor of public policy and economics at the University of Virginia's Frank Batten School of Leadership and Public Policy, employment rates for groups that are more likely to have criminal records actually decreased in areas with “ban the box” laws. According to Professor Doleac,

Statistically, young, low-skilled, African-American and Hispanic men have higher rates of conviction than other demographic groups. When they can’t tell up front if applicants have a criminal record, employers often fall back on these statistics to broadly eliminate groups that they think, on average, are more likely to have a recent conviction.

The study does not prove that employers are "preemptively" discriminating against African-American and Hispanic males, and employers should be aware that this would be a flagrant form of unlawful discrimination. But even though correlation is not causation, I feel somewhat vindicated by the study's findings that "ban the box" laws may not only be unnecessary, but may actually have the opposite effect of what they were intended to accomplish. As Professor Doleac stated,

Basically, what we know about the impact of these types of laws is that providing more information about job applicants increases hiring of racial minorities, and taking information away decreases employment for these groups.

I’m sure none of us can think of any other occasions where the government’s meddling has caused more problems than it solved.

Image Credit: From flickr, Creative Commons license, by Kumar Appaiah.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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