Ban the Box: Fix It or Start Over?

By Roy Maurer Mar 16, 2017
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Advocates and critics of ban-the-box policies—which delay questions about an applicant's criminal history until later in the hiring process—are reacting to recent research that shows the measures may increase hiring for white men with criminal records but decrease hiring for minority applicants.

Some employers, like Wal-Mart, Target and Home Depot, have voluntarily adopted the measures, while others must comply as part of a myriad of local, state and federal ban-the-box laws.

As of March, there are 25 states and more than 150 cities and counties that have passed laws prohibiting employers from asking about job applicants' criminal history until employers make a conditional job offer.

[SHRM members-only toolkit: Conducting Background Investigations]

"Research on ban the box [conducted in 2016] has shown that it increases callback rates for people with criminal records," said Christina Stacy, senior research associate with the Urban Institute, a Washington, D.C.-based think tank.

Stacy referenced results from researchers at the University of Michigan and Princeton University based on 15,000 fictitious online job applications submitted in New York City and New Jersey, both before and after each jurisdiction adopted a ban-the-box policy.

A 2017 study of public-sector ban-the-box policies conducted by Terry-Ann Craigie, an assistant professor in the department of economics at Connecticut College in New London, found that the likelihood of ex-offenders ages 25 and older securing public-sector employment has risen by nearly 5 percentage points overall, and by up to 8.7 percentage points for states and municipalities that have fully implemented the policies. Craigie's study included nearly 9,000 individuals.

"These estimates may not sound like much, but they actually constitute 40 percent to 67 percent of the outcome mean, underscoring that public-sector ban-the-box policies are doing a great deal to improve the public-sector employment of the correctional population," Craigie said.

But the 2016 research cited by Stacy concluded that ban-the-box policies also reduce the likelihood that employers call back or hire young black and Latino men.

"This is based on the theory that employers, with a distaste for hiring those with conviction records and who are denied information about convictions on application forms, will use other characteristics such as age, gender, race, ethnicity and education to predict whether an applicant has ever been convicted, and weed out applicants according to these predictions," Craigie said. "Based on this theory, young black and Hispanic males with high school diplomas or less would stand to lose the most from ban-the-box policy adoption, whereas young, white, low-skilled males would stand to gain the most."

Craigie, however, found no evidence of racial profiling against young minority males in her study of public-sector employment. "The study finds that ban-the-box policy impacts on the public-sector employment of young, low-skilled minority males relative to young, low-skilled white males are statistically the same," she said.

Advocates for ban-the-box policies are calling for stronger enforcement of anti-discrimination laws as a way to mitigate any impact such policies may have on protected groups. 

Stacy recommended that policymakers and employers coordinate their efforts on a combination of the following:

  • Improving anti-discrimination enforcement by increasing government oversight of employer practices and data and mandating employers follow the 2012 Equal Employment Opportunity Commission guidance on the use of arrest and conviction records in hiring decisions.
  • Expanding employer training about ban-the-box policies.
  • Removing information that could be interpreted as an indication of a person's race from job applications, such as a candidate's name and address, to help avoid implicit bias.
  • Expunging more criminal records, which would prevent some records from being discovered during background searches.

Time to Start Over?

Others however, say the unintended consequences of ban-the-box laws are greater than the employment benefits to ex-offenders.

"I think it's time to repeal and replace ban the box," said Jennifer Doleac, an assistant professor of public policy and economics at the University of Virginia in Charlottesville, and the author of another 2016 study showing that ban-the-box policies reduce employment rates for minority applicants.

"The fundamental problem with ban the box is that when employers can't ask job applicants about their criminal histories, many assume that young, low-skilled black and Hispanic men are likely to have criminal records and, as a result, don't call them in for interviews," Doleac said.

"Using race as a proxy for criminality is of course illegal, but it's notoriously difficult to enforce our anti-discrimination laws. We'll never be able to completely prevent employers from considering race in their hiring decisions so we should consider this consequence when making policy."

Doleac and Michael Stoll, a professor of public policy at the University of California, Los Angeles, are among a group of experts who argue that employers and policymakers should come up with alternative measures to increase the employment of ex-offenders.

"If the goal is to increase employability and employment rates of those with records, my research indicates polices other than ban-the-box are likely more effective at achieving this goal," Stoll said.

Doleac said that employability certificates provided by a court or parole board could provide a valuable signal about an applicant's work-readiness and also help shield employers from negligent-hiring lawsuits. "Early research shows that having an employability certificate completely wipes out the effect of having a criminal record," she said.

She also advised more investment in job-training programs for people leaving incarceration.

Stoll suggested these additional steps to boost ex-offender employment rates:

  • Limit information gleaned from background checks to convictions, since arrests may not lead to convictions.
  • Turn to intermediaries who can provide vouching services to employers and case management services to ex-offenders.
  • Indemnify employers with bonding to insure them against the financial liabilities that may result from hiring ex-offenders. "Such bonds are underutilized by employers at the moment, even though many indicate that legal liabilities are among their greatest concerns when hiring from this population," Stoll said. "An outreach effort to increase awareness of them, and to make these bonds more easily available to employers, should be undertaken."

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