A new nation-wide study of “ban-the-box” policies in public employment finds that they have been generally effective in increasing employment opportunities for people with a criminal record. Significantly, the study finds no evidence that these policies encourage reliance on racial stereotyping where public employment alone is concerned — though the author acknowledged, in an interview with the CCRC, that “the evidence is mixed” when private employment is also considered.

“Ban-the-box” policies, which delay employer inquiries about an applicant’s background until a later stage in the hiring process, have become a popular reform measure at least in part because it can be implemented on a systemic basis.  As of January 2017, there were 25 states, DC, and over 150 municipalities that had adopted ban-the-box policies, most of them applicable only to public sector employment.  But despite the increase in ban-the-box policies, little research has been done into their effectiveness in improving the employment prospects of justice-involved individuals. Some jurisdictions such as Atlanta, GA and Durham, NC have reported dramatic improvements in the percentage of convicted individuals hired. However, these local outcomes may not reflect the national experience.

Research on the effects of ban-the-box policies by Connecticut College economist Terry-Ann Craigie suggests that they have dramatically improved the public-sector employment prospects of individuals with a criminal record nation-wide. Professor Craigie also found that these salutary effects have generally not been offset by a corresponding increase in racial profiling. Overall, her study (whose results are not yet published) concludes that ban-the-box policies have increased the odds of getting a public sector job for those with a criminal record by close to 40%.

Here is Professor Craigie’s abstract for “Ban the Box, Convictions, and Public Sector Employment:”

In 2004, the grassroots civil rights organization All of Us or None, advocated for the implementation of Ban the Box (BTB) policies to improve the employment outcomes of the correctional population, especially within the public sector. However, scholars argue that young low-skilled minority males may be subject to employer use of statistical (racial) discrimination. The study employs quasi-experimental methods to identify the impact of public sector BTB policies on public sector employment. In general, the study finds that public sector BTB policies increase the odds of public sector employment for those with convictions by close to 40%; however, the study uncovers no evidence of statistical (racial) discrimination against young low-skilled minority males.

Professor Craigie based her study on data from the National Longitudinal Survey of Youth 1997 Cohort (NLSY97), which followed nearly 9,000 individuals from 1997 to 2013 and provides comprehensive information about their conviction and employment histories. She explained her research protocol to the CCRC:

[The study] focuses on individuals aged 25 and older to better characterize the prime working age population.  Because the NLSY97 is nationally representative, the study was able to evaluate all counties with local or state-wide ban-the-box policies in place prior to January 1, 2013 and compares them to those without these policies in effect by that time. More specifically, the study measures the impact of ban-the-box reforms by comparing the employment odds of those with convictions to the odds of those without convictions.  It also compares the employment odds of those living in jurisdictions with ban-the-box policies to the odds of those living in jurisdictions without these policies.  These comparisons are also done before and after each ban-the-box policy took effect. Most ban-the-box policies, especially those implemented at the movement’s outset, target public employers, and the study therefore focuses explicitly on public sector employment and public sector ban-the-box policies. In general, the study finds that within this context, ban-the-box policies substantially improve the employment odds of those with convictions.

Reliance on stereotypes 

Professor Craigie concedes that there may be some validity to the argument that employers may rely on racial stereotypes when they are unable to ask about criminal records. As she told the CCRC,

Critics argue that withholding criminal history information from employers often leads them to rely on stereotypes to weed out applicants they believe are more likely to be a risky hire because of a criminal past.  Insofar as this phenomenon exists, it will disadvantage young minority males with low education simply because they are statistically more likely to have a history of justice involvement.  That concern has led some to call for the outright repeal of ban-the-box laws and policies.

But the evidence is mixed on whether employers racially discriminate in response to ban-the-box policies. Within the public sector, this study finds no evidence that ban-the-box policies negatively impact the employment prospects of young minority males with low education. However, there are other studies that show that employers, especially in the private sector, are using race as a proxy for criminal history when information on that history is unavailable.  Two working papers found that private-sector employment discrimination against young low-skilled black males increased after the implementation of private-sector ban-the-box policies.  Yet another study found that the ban-the-box actually improved the employment prospects of young black males but disadvantaged black females.

Studies that have found a link between ban-the-box policies and discrimination in the private sector cite fears of negligent hiring liability and lack of work-readiness as key reasons for the increase in discrimination.  And yet, such discrimination does not appear to be present in the public sector, which has similar concerns.

Contrasting outcomes in public and private employment

Professor Craigie also explained why private employers may be more resistant to ban-the-box policies than public employers:

The difference may lie in the private sector’s concern with public image.  A recent report found that 4 out of 10 Connecticut employers are concerned about how the reputation of their company could be affected if they hire formerly convicted individuals.  Public image and profit margins, which are a non-existent concern in the public sector, are inextricably linked, and that link may well explain why some private employers are willing to violate equal employment opportunity laws to circumvent ban-the-box policies.

If public image concerns are behind the differences in the way that public and private sector employers have responded to ban-the-box policies, then calls to repeal ban-the-box policies are misguided.  Encouraging employers to ignore their bottom line is an unwinnable battle, but encouraging the public to support businesses that are willing to hire applicants with a history of justice involvement is a goal that is within the reach of advocates.  Instead of repealing ban-the-box policies, those who support fair chance hiring should work to support the movement by changing public perception.  If that happens, then private sector employers are likely respond in kind.