Do ban-the-box policies increase racial discrimination in hiring?

June 22, 2016 CCRC Staff

Update: The National Employment Law Project has responded to these studies with a critique that we cover here.

Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities. A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.

Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race. To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

Another forthcoming study appears to confirm Agan and Starr’s findings. According to Jennifer Doleac of the Brookings Institute, one of the study’s co-authors, “black and Hispanic men without college degrees are significantly less likely to be employed after ‘ban the box’ than before.” Writing for Real Clear Markets, Doleac summed up the problem as follows:

If you take information about criminal records away, what happens? Employers are forced to use other information that is even less perfect to guess who has a criminal record. The likelihood of having a criminal record varies substantially with demographic characteristics like race and gender. Specifically, black and Hispanic men are more likely than others to have been convicted of a crime: the most recent data suggest that a black man born in 2001 has a 32% chance of serving time in prison at some point during his lifetime, compared with 17% for Hispanic men and just 6% for white men. Employers will guess that black and Hispanic men are more likely to have been in prison, and therefore less likely to be job-ready.

In Doleac’s view, these outcomes are the predictable and inevitable result of banning the box. As she sees it, they can only be avoided by repealing ban-the-box laws altogether:

Overall, the unintended consequences of “ban the box” are large, and run counter to one of its goals: reducing racial disparities in employment. For this reason, I hope jurisdictions repeal their “ban the box” laws. But I also hope this doesn’t stop efforts to improve the lives of people coming out of prison. This is a group that our country has long neglected, and we should be doing much more to help them succeed. Advocates could push for policies that would provide more information to employers about ex-offenders’ job-readiness, rather than taking information away. Better yet, they could help disadvantaged ex-offenders improve their job-readiness. The more employable the average ex-offender, the less cautious employers will be about hiring one.

[UPDATE 7/25/16 – The Doleac article (co-authored with Benjamin Hansen) is now available here.]

However, Maurice Emsellem of the National Employment Law Project argues that it is unlawful racial discrimination that is the real problem, not ban-the-box policies. As he told the Weekly Standard, rather than supporting the repeal of ban-the-box policies, these studies “signal the need to double down on enforcement of several civil rights laws and build on the progress that’s been made enforcing the EEOC criminal record guidance.”

While it is true that racially biased employment practices are almost certainly at the root of the problem, it remains the fact that employment discrimination laws are notoriously difficult to enforce and that their nature makes them useful only for dealing with discrimination on a case-by-case (or employer-by-employer) basis. Meanwhile, the racially discriminatory effects of banning the box will be felt across all employment markets where these policies are in force. The problem remains how to increase employment opportunities for those with criminal records without aggravating discrimination against other marginalized populations.