New Research Suggests Ban the Box Laws Could Lead to Hiring Discrimination

Posted Thursday, September 1st, 2016 by Sterling Talent Solutions

Estimated Reading Time:

New Research Suggests Ban the Box Laws Could Lead to Hiring Discrimination

Since the concept of Ban the Box legislation was introduced, I’ve often wondered whether these laws actually accomplished their intended goal – which is to give those with convictions on their record a fair chance of finding employment. As a quick review Ban the Box laws mandate employers remove the question on their job applications asking candidates to divulge if they’ve been convicted of criminal activity. The thesis behind these laws is that minorities are convicted at a higher rate than the rest of the population and that asking the question leads to disparate impact in hiring decisions.

I’ve always been unsure if delaying the question until later in the process benefits either candidates with past convictions, or you, the employer. Will getting to know the candidate better before you learn about the conviction on an employment background check later in the process change your hiring decision if it’s a disqualifying offense based on your parameters?

My concerns aside, there are some compelling studies that suggest these efforts are working. New Republic published an article that highlighted some of the early returns.

“The available data is not robust, as many of these policies are new, but the numbers suggest that banning the box significantly helps. In Minneapolis, fewer than 6 percent of applicants whose background checks raised concerns were hired by the city prior to the 2006 decision to adopt a version of the policy. After its implementation, that number jumped to 57.4 percent. The city of Durham, North Carolina, passed a similar law in 2011; since then the proportion of people with records hired for municipal jobs has increased seven-fold, from 2.25 percent in 2011 to more than 15 percent in 2014, according the Southern Coalition for Social Justice (SCSJ).”

This research while limited in scope and time would seem to suggest that these laws are in fact achieving their intended affect.

Do Ban the Ban Laws Increase Opportunity for Discrimination?

While I had my doubts about whether Ban the Box laws would actually remove barriers for job candidates with past convictions and therefore eliminate disparate impact, I never considered that removing the question could lead to actual discrimination.

Over the course of the summer I’ve been reading about various studies which suggest that when employers aren’t allowed to ask the question, they revert to their own subconscious biases. So, now instead of eliminating candidates with criminal records, they are potentially eliminating all minority candidates.

Check out this excerpt from a recent article written by The Atlantic:

“In a recent paper from the National Bureau of Economic Research, Jennifer L. Doleac of the University of Virginia’s Frank Batten School of Leadership and Public Policy and Benjamin Hansen of the University of Oregon looked at how the implementation of ban-the-box policies affected the probability of employment for young, low-skilled, black and Hispanic men. They found that ban-the-box policies decreased the probability of being employed by 5.1 percent for young, low-skilled black men, and 2.9 percent for young, low-skilled Hispanic men.
That’s because, they say, when employers cannot access an applicant’s criminal history, they instead discriminate more broadly against demographic groups that are more likely to have a criminal record. The paper indicated that this type of discrimination is especially prevalent in the Northeast, Midwest, and West, where there is a larger pool of non-black applicants to choose from. In the South, because such a large proportion of job applicants are black, the opportunity to discriminate is reduced, the paper finds. “There is rapidly-increasing evidence that [banning the box] has unintentionally done more harm than good when it comes to helping disadvantaged job-seekers find jobs,” they write.”

U.S. Commission of Civil Rights commissioner Peter Kirsanow shared this specific concern with me when the EEOC released their guidance of employers use of criminal background checks in 2012. He feared that the guidance could cause employers to abandon use of background checks and would instead lead them to make hiring decisions based on their personal biases.

In a separate study, Sonja Starr, a University of Michigan law professor and Princeton Economist Amanda Agan found the same disturbing trend.

Starr was quoted in The Daily Michigan Daily as follows:

“It’s mixed news for Ban the Box. On one hand, we found that it was true that criminal records were a huge obstacle to getting jobs. And companies do comply with Ban the Box so that obstacle for the initial callback stage disappears after Ban the Box goes into effect. On the other hand, there was a very large increase in racial discrimination after Ban the Box went into effect.”
Before Ban the Box, white male applicants had 7 percent more callbacks than black applicants. After Ban the Box, this gap increased to 45 percent.
Starr said the consequences were unintended, since Ban the Box was meant for people of color to pass the initial stage of employment.
“BTB is often presented as a way of increasing black male employment, but most black men do not have criminal convictions, and BTB risks harming black men without records by preventing them from signaling that fact to employers,” the research study stated.

So where does this leave us?

First and foremost, I would not encourage you to draw any substantive conclusions from the studies I’ve shared above. Secondly, please don’t use the latter-mentioned studies as a reason to ignore any law which mandates that you remove this question from your job application. It’s very early on and we need to monitor this and other research in an unbiased manner until the data reaches critical mass.

If you are affected by Ban the Box, consider taking the following steps:

  • Review your hiring procedures and criminal background screening policies.
  • Review your job application and other forms to make sure you’re not asking about criminal history on the forms.
  • Train recruiters and HR employees to ensure that no inquiries are made until after a candidate’s initial interview.
  • Review your recruiting material, job descriptions, and advertisements to remove any mention of criminal background requirements or qualifications.

Webinar | Ban the Box: Where Are We Now?

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.