Employment After Incarceration: Ban the Box and Racial Discrimination

Ban the Box eliminates barriers between employers and qualified candidates. It's a good start to help people reenter society. But an unintended consequence reiterates the need to also tackle a more pervasive problem: racial discrimination.

October 13, 2017

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

Last month, California’s legislature sent to the governor’s desk a new law designed to make it easier for people with a criminal record to find employment. Such “Ban the Box” laws enact a simple, common-sense reform: employers can ask about an applicant’s criminal record, but they must wait until later in the application process. This is a welcome change for the 65 million Americans with some form of criminal record.

Ban the Box strives to eliminate barriers between employers and qualified candidates. But it is only a starting point. Research shows that if we truly wish to help people reintegrate after time behind bars, or even a misdemeanor conviction, our lawmakers must also confront another, more pervasive problem: racial discrimination.

Some studies suggest that Ban the Box has a surprising unintended consequence of fewer job offers going to young black men. How can this be? The authors argue that by depriving employers of concrete information on an applicant’s history, it encourages them to guess which candidates have criminal records. Young black men with low education are more likely to have criminal records, so employers, consciously or subconsciously, discard black men from their applicant pool as a result.

This is illegal. Equal Employment Opportunity Commission (EEOC) guidelines clearly state that race should not be used as a proxy for criminal background. If employers hire fewer black applicants in response to Ban the Box, make no mistake — that is racial discrimination. We should all be outraged, though not necessarily surprised. 

Ban the Box is being used a scapegoat for discriminatory hiring practices that have been going on for decades. Black men have always experienced it. Black men without criminal records are considerably less likely to receive interview callbacks than white men with criminal records. So are employers afraid of hiring someone with a criminal record? Or, are they afraid of hiring a black man with a criminal record?

It’s important to note that if Ban the Box exaggerates hiring biases, this is something the government can address. My own research shows that in the public sector, where anti-discrimination laws are especially robust, Ban the Box improves the odds of employment for those with criminal records. There are also no adverse consequences for young black men.

A criminal record is a clear barrier to getting a job. One study found that having one reduced interview callback rates from employers by about 50 percent. Additionally, 60 percent of formerly incarcerated people are unemployed after one year of release. Half of them end up back in a life of crime.

This underemployment is what Ban the Box seeks to address, by preventing employers from discarding job applications of those with criminal records, without even evaluating their qualifications or the context of their convictions. But contrary to popular belief, the policy does not deny employers access to criminal background information. Nor does it force employers to hire workers with a criminal record. It simply defers criminal history until later in the process, to give all applicants a fair chance to be judged, first and foremost, on their qualifications. Conditional job offers are still at the discretion of the employer, as are pre-employment criminal background checks.

Some have proposed another way to help former offenders find a job: using certificates of employability (COEs) to ameliorate employer concerns about hiring someone with a criminal record. I agree this policy should be considered. However, if employers are already more likely to interview whites with criminal records than blacks without them, why would they be more likely to consider a black applicant with a COE over a white applicant without one? One study finds evidence that COEs increase employment among white males with criminal records. Unfortunately, we cannot make any inferences about how COEs affect young black men who disproportionately comprise the justice-involved. This is why it is essential to treat the disease of racial discrimination at the root. We need to devote more resources to brainstorming and implementing strategies that keep employers honest throughout the hiring process.

It is unfair to assume all employers engage in willful discrimination. The majority perform careful, individualized assessments of candidates with criminal records — as they should. But rather than use this surprising aspect of Ban the Box to demonize policies meant to restore civil rights, it is high time we hold employers accountable for their discriminatory practices. Our criminal justice system continues to severely punish young black men for the crimes they commit. Under no circumstances should we give employers a free pass for theirs.

Terry-Ann Craigie, Ph.D. is the Economics Fellow at the Brennan Center for Justice at New York University School of Law and an associate professor of economics at Connecticut College. Her research focuses on the social costs of mass incarceration and criminal justice reform.