Leading experts weigh in on current policy issues and challenges

How Can We Improve Ban the Box Policies?

Recent research has shown that although ban the box policies, which delay questions about criminal history and background checks until late in the hiring process, are beneficial for people with criminal records, they can also have unintended consequences on young men of color. How can we ensure ban the box policies have their intended effects, while preventing negative impacts on people of color? 

The Urban Institute is talking with...
Amanda Agan Amanda Agan
Jennifer Doleac Jennifer Doleac
Dorsey Nunn Dorsey Nunn
Michael Stoll Michael Stoll
Daryl Atkinson Daryl Atkinson
Brianna Walden Brianna Walden
Nancy La Vigne Nancy La Vigne
Christina Stacy
Moderated by:
Christina Stacy
Senior Research Associate, Metropolitan Housing and Communities Policy Center
14

Welcome to our policy debate on ban the box. Ban-the-box policies have gained momentum in recent years, with over 150 cities and counties and 34 states and Washington, DC adopting such laws. However, as laid out in our recent policy report, new research has shown that while ban the box can improve call back rates for people with criminal records, it can also exacerbate racial biases against young men of color and reduce their likelihood of getting called for an interview or hired. What does this potential negative effect mean for ban the box? Should it be repealed, or should we try to find ways to fix the unintended consequences while maintaining the benefits for people with criminal records?

I think it's time to repeal and replace ban the box (BTB). There are other policy options that would have bigger benefits for people with criminal records, without the large unintended costs that BTB imposes on young black and Hispanic men who don't have records.

The fundamental problem with BTB 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. 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.  My research with Ben Hansen shows that so far the net effect of BTB has been a 5% reduction in employment for young black men without a college degree.

So what are the alternatives?

Most employers simply want to find reliable, productive employees, and struggle to figure out which job applicants are good bets. They are worried about two things: (1) lack of work-readiness, and (2) risk of a negligent hiring lawsuit if they hire someone with a record who later commits a crime on the job. These are valid concerns that we can help address.

Employability certificates are one policy option that 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.

Investing in high-quality rehabilitation and job training programs for people coming out of prison would also help make this group -- which struggles with low education, emotional trauma, and high rates of substance abuse -- better able to hold a steady job. The less a criminal record is a signal of low productivity, the less employers will care about it.

It’s wonderful to see the political momentum behind BTB because it signals that people want to help individuals with criminal records build stable lives. But BTB isn’t the best policy option available to us. At best it is a band-aid on a deeper problem, and at worst it's doing a lot of damage. It's time to try something else.

Ban the Box is not the problem; implicit bias and racism in hiring practices are the problems.  

Ban the Box policies attempt to alter how the racist and dehumanizing criminal justice system in America lingers on the backs of Black and brown people as they apply for jobs and seek to rebuild their lives. No policy can completely fix America’s or Americans’ deeply ingrained, fundamental racism.  This land was stolen from the people of color living here before Europeans arrived; then it was plowed and built by enslaved people of color.  A hiring law will not fix this historically-held and reinforced racism. So, the first thing we need to do is to acknowledge and appreciate exactly what Ban the Box does and doesn’t do, and the many forms that racism in America takes.  

 

Convicted or Not, Black People Are Less likely to be hired than Convicted White People

Black men, with or without a conviction, have always been labeled as criminal. The Thirteenth Amendment “abolished” slavery, with the huge caveat that slavery is legal if punishment for a crime.  After the Civil War, the southern states instituted the Black Codes which made it illegal for a Black person to stand or sit in public (loitering) or to appear to be unemployed (vagrancy). The states then capitalized on the convictions that they created in order to continue running plantations and manufacturing on the backs of the people the country has just fought a civil war to free.  The discrimination was structural and institutionalized through the state-action. Little has changed in the collective consciousness of America—Black people are still viewed as fundamentally criminal.

In 2003, just before the Ban the Box campaign began, researcher Devah Pager found that a white person with a felony conviction was more likely to be offered a job interview than an equally qualified Black person without a conviction:

This study found that conviction status was less important than racial status to those employers.  However, once an applicant made it past the initial application, Pager found that in person interviews were the single most important factor in an employer’s hiring decision.

All of Us or None, a Project of Legal Services for Prisoners with Children, a grassroots organization of formerly incarcerated people, family members, and allies, began in 2003. At that time, the community came together and identified barriers to employment and housing as the most pressing issues faced by formerly incarcerated people.  The “Box”--indicating on applications if a person was convicted of a crime or felony--was both the visual and figurative form of screening out all people with a conviction history.  We agreed that checking the box meant no chance at employment, but that an in-person interview would at least give us fair shot: allowing us to prove that we are whole people and qualified for the job.

 

 

All of Us or None began the Ban the Box campaign starting with San Francisco City and Alameda County in 2005. We partnered with the National Employment Legal Project (NELP), and now over 30 states and 150 city / local governments have Ban the Box / Fair Chance Hiring policies.

Using our language, California Assembly Members McCarty, Weber, Holden, Gipson, and Reyes have introduced AB 1008 (Employment discrimination: prior criminal history), which will extend Ban the Box to cover all employers--public and private--throughout the state.

 

Particularly for the Convicted

The criminal justice system has been built to reinforce its racist foundations. Police are more likely to unreasonably stop people of color than white people; then, police are more likely to search people of color than white people. Even though Black and white people use drugs at about the same rate, Black people are more likely to be arrested and charged with a crime for the use. Prosecutors are more likely to charge Black children as adults than white children when they are accused of breaking the law. Crack, stereo-typically more likely to be used by Black people than white, still carries a sentence 18 times longer than the same dose of cocaine, used more often by white drug users. This is down from a difference of 100 times.  People of color are more likely to be sentenced for longer periods of time and to prison than white people with the same conviction.  These trends make it less likely, in California and other states, that a person will be able to clean up their record later. Ban the Box policies are one way to limit how these inequalities follow people  color out of the prison and into the job market.  

 

 

 

Ban the Box policies work.

San Francisco CA, Durham NC, and Baltimore MD have implemented Ban the Box policies for a number of years, and show quantifiable benefits to Fair Chance Hiring to both employer and employee.  

It is not just about removing the box, but also about educating employers and HR departments about fair chance hiring, evaluating whether a conviction is relevant to the job duties, and the benefits hiring formerly incarcerated people, both to the company and the community.

For more information see the many reports supporting Ban the Box policies, as well as our Ban the Box Toolkit, which includes our 2016 report Ban the Box in Employment: A Grassroots History.

 

 

These are excellent opening comments from two sides of the issue. I'm struck by the fact that regardless of whether BTB has yielded its intended impacts (or created unintended ones), it has taken on a life of its own, becoming far more than a policy and much more of a social movement. I would argue that this is a good thing. BTB has raised awareness among the general public of the challenges of obtaining employment with a criminal record, and that increased awareness has probably made at least some share of prospective employers more open to hiring people with records.

That said, BTB addresses just one of many barriers to employment. Criminal background records checks are another huge barriers, and run the risk of misrepresenting criminal histories. They could also result in otherwise suitable candidates from being hired based on criminal histories that do not pose risks associated with the specific jobs they are seeking.

As we describe in a forthcoming Urban Institute research brief, criminal background checks can yield inaccurate and incomplete data, with some share of background check reports failing to distinguish between arrests that resulted in conviction versus those that did not.  In addition, criminal record reports do not  consistently remove records that have been legally expunged, and sometimes include records that span beyond 7-year period prescribed by federal law. As a result, employers may unnecessarily limit their pool of potential candidates, and people who pose little risk to the public experience unnecessary barriers to employment.

To my knowledge only a handful of jurisdictions  address both the "box" and the records check process holistically. Arguably they should.

Thank you everyone for all of these great comments! Jennifer brings up an interesting policy alternative -- employability certificates for people with criminal records. The authors of the report she cited state their concern, though, that "the certificates discussed here may not be as effective for minority ex-offenders" and that "future research should also include race and different types of offenses to further test the effectiveness of certificates of relief".  These seem like valid concerns. What does everyone think of this as an alternative to ban the box? 

Jennifer also says that she doesn't think that fully enforcing our anti-discrimination laws is possible. What do others think? Should improved enforcement of equal employment laws and regulations be a priority and is it possible to reduce discrimination in this way?

Dorsey mentions another policy addition that might help to improve ban the box: employer education about fair chance hiring. Should this be a requirement for all ban the box policies? And, do we know of best practices for how to ensure that these trainings are successful?

Another policy addition that could help with or without ban the box is brought up by Nancy: improved accuracy of criminal background checks. Where do we all think this falls on the list of priorities, and what are the best ways to make this happen?

Finally, one other policy addition that has not been mentioned is removing racially identifying information from applications such as name and address. This, in combination with ban the box, could allow people with and without criminal records and people of different races to have an equal opportunity to at least make it to the interview stage for a job. What do people think of this proposal? Is it worth trying out?

(Note - this doesn't address your great questions, Christina, because it was composed yesterday and failed to post! I look forward to hearing what folks have to say about those and responding in a later post).

 

Cultural change holds a greater promise of success than coercive policy in the pursuit of higher employment levels for individuals with a criminal record. When a company chooses to ban the box (BTB) or adopt other fair chance hiring practices on their own accord, this signals an embrace of the principle of second chances on the part of company leadership. Not only is that more likely to create a work environment in which individuals with a criminal record are better set up to succeed, but it also eliminates the use of race, zip code, or other factors as a "work around." Jennifer's research increasingly demonstrates the presence of these work around tactics when BTB is imposed upon private companies as another government rule for how they do business.

While I work at the Charles Koch Institute, and won’t speak directly on behalf of Koch Industries, their general counsel, Mark Holden, has repeatedly said publicly that for Koch Industries (a company which employs around 70,000 people in the  US), banning the box made great business sense because it expanded the talent pool of applicants by encouraging more folks to apply for roles who might otherwise have been dissuaded by having to check the box. Furthermore, while they don’t track the data, anecdotally, some of their most valued and hardest working employees have criminal records. Koch Industries does a background investigation only after a conditional offer of employment has been made because they have a commitment to taking the time to get to know the candidate as a person first.

No amount of required box banning can substitute for that voluntary commitment.

I am skeptical of laws that mandate private employers ban the box because I believe they have the potential to do more harm than good (as has been well articulated above), however, I fully support positive peer pressure among business leaders, chambers of commerce, and advocacy organizations, to persuade reticent companies that taking this step is the right thing to do and good business.

The Jacksonville, FL, chamber of commerce is leading the way with their Project Open Door.  As described by their mission statement, the project "is an initiative led by the JAX Chamber to encourage employers to delay criminal background inquiries to the interview process. Also known as “ban the box” in other communities, this is a voluntary effort to afford more opportunity to all Jacksonville citizens while helping support the regional economy... This is not something we are trying to address at City Hall or in Tallahassee. This is the business community leading the way and agreeing that by not immediately excluding someone with an arrest record, we make a positive change in our companies and in our community." As of last November, 50 companies had agreed to sign on. They partner with local re-entry nonprofits and even provide companies that sign on with a "sample employment application" and a "sample background authorization".  

Government entities and political leaders such as Georgia governor Nathan Deal, can and have set a positive example by removing the box on public job applications, without taking the next step and banning it for the private industry. 

Employment is a vital rung on the ladder of opportunity. We do everyone a disservice by shutting large numbers of people out of the workforce solely because they have done something wrong , made a mistake, or fell in with the wrong crowd and were at the wrong place at the wrong time. To truly address the crisis of unemployment for individuals with a criminal record, we should focus our efforts on changing the hearts and minds of those offering employment in our society, not the law.   

To Christina's question about employer education, I want to echo what Brianna wrote above: the unintended consequences of BTB arise when a law prohibits employers from asking about information they want. That is, we find that BTB laws reduce employment for young black men, but there's no reason to expect that employers that voluntarily stop asking about applicants' criminal records would begin discriminating based on race. Employers often refer to this action as "banning the box" but I'd call it simply "removing the box". No ban is necessary in this case.

I don't think we know much about how to encourage employers to take this step, but I agree with Nancy that the BTB movement has likely changed some employers' minds. That's a good thing, and we should encourage further employer education and action on this front.

No law is a silver bullet; however a change in the law can be the catalyst to move society to voluntarily act more fairly. Ban the Box has spread across the country both as mandated law and also as employers realize that it is good policy, and choose to use it, as well as encourage other companies to do so. With changes in law, we need to better inform employers of their legal rights and responsibilities in hiring any employee. Employers need to understand not only the socio-economic benefits of hiring formerly incarcerated people but also the anti-discriminatory laws which will be violated by employers if they impose a blanket ban.

Dr. Doleac states: “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. Using race as a proxy for criminality is of course illegal, but it’s notoriously difficult to enforce our anti-discrimination laws.”

The decision to not hire people of color based on this assumption (or any other assumption about people of color as a class) is racial discrimination. In fact, with or without a Ban the Box law, the U.S. Equal Employment Opportunity Commission (EEOC).  (and many state regulatory agencies with similar missions) prohibits an employer from assuming that people of color have a conviction; this is per se and explicit discrimination. Even without a Ban the Box law, an employer refusing to hire any person with a conviction (or felony) is also per se discrimination and could be prosecuted by the EEOC or an applicant unfairly discriminated against.

Discrimination can be costly for employers.

Blanket bans on people with conviction histories deprive people of due process and, as people of color have been disproportionately affected by mass incarceration, run afoul of the Civil Rights Act and Fair Housing Act. The EEOC filed a lawsuit against BMW for illegal and discriminatory use of conviction histories in hiring.  In the investigation, EEOC learned that approximately 100 people were fired for having conviction histories, many had worked there for years, of the 100 people, 80 were Black. The case resulted in BMW paying $1.6 million as well as rehiring the illegally fired employees, and retraining their own staff in considering conviction histories of employees.

The argument that employers are fundamentally racist and therefore should not be forced to follow Ban the Box policies is both racist and illogical because Ban the Box doesn’t stop an employer from ever considering the conviction history of a potential employee. It simply forces the employer to give every applicant an individual review of their qualifications before considering their conviction history. Because employers are already required to perform an individualized assessment of the job duties compared to the conviction and weigh any mitigating factors, Ban the Box merely delays when they may perform this evaluation, allowing employers to focus on work-readiness ahead of racial or conviction bias.

Employers Can Put Work-Readiness Above Racial Fears

Uber contracts with thousands of people to drive (a skill requiring little formal training and already possessed by most) in hundreds of cities. In Houston, Texas, drivers are allowed to work for up to one month while waiting to go through a FBI conviction history check. Uber has found no difference in the quality or safety between people who have and have not been background checked. Additionally, in California, since the passage of Proposition 47—where voters on a massive scale chose to decrease the penalties for several low level theft and drug possession crimes—Uber has hired nearly 4,000 drivers who were not eligible to drive until they reduced their records under Proposition 47. Uber reports that there, again, is no difference in the ratings (with an average rating of 4.82 out of 5 points)and safety of drivers with these convictions. Additionally, Uber reports that these drivers disproportionately live in areas with higher rates of unemployment, meaning that work opportunities are that much more important to those drivers and their communities.  Uber can see the difference between racial bias and smart investments in qualified and dedicated drivers.

Employers need to be “Hire-Ready:” they need to educate themselves on the law and the relative risks, before beginning the hiring process for any employee.

Adversaries to Ban the Box policies frequently cite employers' concerns of "Negligent hiring" lawsuits as a main obstacle to support Fair Chance Hiring. LSPC / All of Us or None have actively campaigned for Ban the Box for over a decade, and we have yet to see a study or citation showing that this is a serious and realistic fear, rather than an abstract excuse for racial bias. A successful negligence suit would need to show that the employer:

  1. Knew or had reason to know of a specific risk posed by the employee’s record (so that the harm was foreseeable) and
  2. That specific risk caused the victim’s injuries while the employee was on duty.

Ban the Box allows an employer to do just that: to make an individualized assessment of the entire employee to see if there is specific risk that the person would harm another person while on duty.  The City of Portland even made an easy-to-use matrix  to determine if the specifics of the conviction history actually have any relevance to the job requirements and duties.

Negligent hiring and Discriminatory hiring carry real consequences, so employers need quality education not only about what the actual risks that they face are but also how to create truly Fair Chance hiring practices to benefit their respective workforces.

 

 

Luckily, there are many guides, government agencies, for-profit companies, attorneys, and non-profit organizations that want to teach employers how to identify and reduce their actual risks in the hiring processes. When San Francisco passed the Fair Chance Act (a comprehensive Ban the Box policy applying to private and public employers) the city also published guides for employers to use in following the law. More recently, Oregon, Baltimore, and many private employment agencies have done similar educational work for employers.

Any change in the labor code is not going to solve all racial biases, and so both employers and applicants need to educate themselves on their legal rights and responsibilities. However, a change in the law and the conversations sparked by those changes can move our society forward. In America’s recent history, a law had to be put in place to allow Black people to eat at the same counter as white people; to allow women to vote; and even more recently, to allow same-sex couples to get married to each other. Because of these laws mandating behavior, today most people think that is the norm. We have moved forward as a society because of laws requiring people and companies to treat others equally. We still have a ways to go. Black people still suffer higher rates of unemployment, women are still paid less, and the LGBT community is still targeted for physical harm and blatant discrimination.  This is the same for me as a formerly incarcerated person, without mandated Ban the Box policies, employers would not have had the data and peer pressure to voluntarily become a fair chance employer. We are glad that so many employers are choosing to use this policy, Ban the Box alone cannot solve our nation’s history of racial oppression and continuing racism, but paired with more work (both policy and cultural) Ban the Box can continue to move us toward a more just and fair society.

Public policies should reflect the VALUES of a society. Over the course of many generations, and countless battles, American society has struggled to live up to its highest ideals of opportunity for everyone and equal treatment under the law. As a country, WE have been in a perpetual battle to define, shrink, and enlarge the collective WE in “We the People”. Our Union has been, and will always be, in constant need of perfecting.

The latest incarnation of discrimination faced by people with conviction histories, which in many cases is a proxy for racial discrimination, is an old problem in new skin. As stated by previous commentators, no one public policy can withstand the historical weight of correcting generations of structural disadvantage. Nonetheless, ban the box policies, and the grassroots campaigns that help get them enacted, address both the immediate transactional outcomes of improving employment prospects of people with records, while also creating opportunities for deeper transformational change where mindsets, on what actually promotes safety and wellness in all communities, can shift.

As someone who lead the grassroots ban the box campaign in Durham, NC, which produced some of the first data that quantified improved employment outcomes for people with records, I can also attest that ban the box policies, particularly the campaigns that birth them, provide opportunities for people with records, who previously may have lived on the margins of society, to exert leadership and become more civically engaged. Christopher Uggen and others have done research on the corrosive effects of felon disenfranchisement laws on civic participation and recidivism, but I don’t know of anyone who has studied the reverse phenomenon. Where a public policy like ban the box increases the civic awareness and participation of people with records who are disproportionately concentrated in communities of color. I have witnessed young men and women with conviction histories express pride and excitement about learning to sign up for public comment at county commission or legislative hearings to advocate for ban the box policy changes. On occasion the outcome associated with these hearings would be the enactment of ban the box policies (transactional change) but the deeper transformational change is the newly asserted leadership and civic engagement of directly impacted people and communities. Questions to consider: Now that these civic muscles have been awakened how many future civic decisions will these individuals now participate in? In communities where the proportion of people with records are high, how does increased civic participation by people with records impact employment and other public policies for that community?  Perhaps we haven’t been answering the right questions.  Perhaps we should use some of our research capacity to come up with indicators to measure the community benefits that people like Dorsey, a formerly incarcerated man, who now employs over 10 people at LSPC, bring to their communities by advocating for policies like ban the box.      

Since I’m late to the online party I’m going to use the rest of my post to address one of Christina’s questions.

Jennifer brings up an interesting policy alternative -- employability certificates for people with criminal records. What does everyone think of this as an alternative to ban the box? 

Daryl’s answer—I live and practice in NC, a state with a Certificate of Relief. In addition, I have represented dozens of clients in Certificate of Relief petitions across the state of NC, thus I’ve seen the results and know that they can be an effective tool at mitigating the negative effects of conviction history. However, current limitations on eligibility, such as limits on how many prior convictions or limits on the severity of offense type, exclude from eligibility far too many of North Carolina’s 1.6 million people with criminal records for Certificates to be a viable alternative to ban the box policies. Moreover, why does it have to be an either-or proposition. We should have Certificates, Ban the Box, Expungement and many other criminal record mitigation tools.       

         

 

Regarding Daryl's last question about why BTB and employability certificates (or similar initiatives) are an either-or proposition: the first mandates providing less information to employers, and the latter provides more information to employers. So they are fundamentally at odds. Further, an employability certificate program would not mitigate the unintended consequences of BTB for young black men without records.

 

Also, many of the points made above about BTB's successes are about the movement, not about the law that hides information from employers. The movement is great, I just think we'd see success faster if it channeled its energies into promoting a different policy.

I appreciate the opportunity to join this interesting discussion.  My research with Sonja Starr has shown that after private ban the box went into effect in NJ and NYC, the black-white gap in positive responses by employers increased significantly.  Black applicants without criminal records were significantly less likely to be called back after the policy went into effect, meaning they couldn’t even get their foot in the door with many employers.  This is in line with Jennifer’s research which shows that this is having negative effects on employment for this group as well. 

The question posed to us here is what we should do and how can (or should we even?) try to improve BTB policies, particularly in light of this research.

This is a tough question.  At the moment we are lacking rigorous, cross-jurisdiction evidence on whether private BTB policies actually help people with criminal records to get employed.  This is going to be a key piece of information moving forward in this debate.  Are we willing to trade-off having young minority men with no records have a harder time getting their foot in the door for increased employment of (some) people with records?  Though it is interesting to see the evidence from Durham for public BTB, I fear that once a private employer performs a background check they may in the end still not hire the person with the record.

I agree with Jennifer that a plea for stricter enforcement of anti-discrimination laws is likely not going to be a feasible short-run solution (particularly, and very unfortunately, under the current administration). These laws are notoriously difficult to enforce as it can be difficult if not impossible to prove discrimination. While I understand the argument that that doesn’t make it any less illegal, I do think we need to think about how we can move forward under the current reality.

In order to increase employment for people with records we need to understand employer’s concerns about hiring people with records. Simply banning certain information will not necessarily make them care less about it.  Surveys have implied that employers are concerned about negligent hiring (in addition to other things), and I think we cannot ignore this.  Even if they are small probability events, the payouts are large (one company indicates that negligent hiring lawsuits average $1 million payouts).  Policies and guidelines including BTB and the EEOC guidelines implore employers to consider the job relevancy and recency of a criminal record with no exact guidelines for what that means and with no limits on potential negligent hiring. Without addressing the root of the issue, it will be hard to solve the core problem.

Of course employers may very well have concerns outside of negligent hiring. Any policy that is going to increase employment for people with records needs to understand and directly address these myriad concerns.

This is a thoughtful discussion so far on the employment concerns of ex-offenders and BNB policies. The key policy goal should be increasing the employment of those with criminal records, and for many of us BNB policies has become the focus of attention instead (with political supporters and detractors) without sufficiently considering alternative policies that might be more effective, or the nuances about how and why employers check for criminal records.  In this regard I'm in agreement with Jennifer Doleac and others who are concerned about BNB policies because their costs of unintended consequences, discussed already, are likely bigger than the employment benefits to ex-offenders. 

 

If the goal is to increase employability and employment rates of those with records, my research indicates polices other than BNB are likely more effective at achieving this goal without the already discussed costs of BNB policies. Most assume that employer checking for criminal backgrounds act as a complete ban on ex-offenders and therefore unambiguously harm them during the employment process.  Results from my previous research, however, indicate that the use and effect of such checks on hiring ex-offenders are more nuanced than previously believed.  For a representative sample of employers in Los Angeles, I find that criminal background checks do negatively affect the hiring of ex-offenders, and the magnitude of this effect is important but not very large.  However, counter to expectations, almost all of this negative effect is driven by legal requirements to check that are mandated by state statutes.  For firms that check for other reasons, the evidence shows that hiring rates of ex-offenders are largely unaffected by such checks.  Two factors that may account for this puzzle. First, some employers may check as a business as usual blanket policy action perhaps for legal or otherwise reasons, and therefore may be agnostic toward whether they actually hire ex-offenders.  Second, some employers check to gain additional information about the ex-offenders whom they may consider hiring to help make risk assessed hiring decisions.  Those employers who seek additional information about ex-offenders are more likely to check criminal backgrounds than employers who are willing or unwilling to hire these men.  They also hire more of these men when they check criminal backgrounds when not legally required to do so. 

 

The results also indicate that when employers do criminal background checks during hiring, the hiring rates of black men increase as Doleac also finds in her study.  This counterintuitive finding suggests that the impact of statistical discrimination against black men of those employers who do not conduct criminal background checks dominates the impact of excluding black men during hiring by employer who do criminal background checks as a result of the greater likelihood that black men have convictions.  Promoting criminal background checks, then, may curb statistical discrimination and increase the hiring of black men more generally. 

 

But is promoting checking in all cases the best policy response given these tensions? Although ex-offenders are not a protected class under Title VII, employment discrimination against this group should be cause for concern. Exclusion from legitimate employment increases the risk of recidivism and is therefore costly to society, especially if exclusion of this group is not fully justified by business necessity. Thus, promoting criminal background checks in all circumstances may not be appropriate either. Recognizing this, some states have made clear that the criteria that guide their use should be narrowly tailored to the appropriateness of the criminal background check given the job requirements and characteristics into which employers are hiring and the public interest. Nonetheless, it is also arguable that some states, given their response to crime over the past two decades, may have overreached in what is considered business necessity or in the public interest and placed state statues on checking criminal backgrounds for certain jobs or of excluding ex-offenders from specific jobs altogether that are not fully justified by these concerns. These practices could amount to an outright exclusion of ex-offenders that are not fully justified by the public interest and therefore should be further examined.

 

In addition to policy recommendations discussed here already by others such as increasing skills and training of ex-offenders and enhancing antidiscrimination efforts, raising employment rates of ex-offenders can be better accomplished by:

 

1) Re-examining Federal, State, and Local Employment/Licensing Restrictions – As discussed, legal requirements to check are the main drivers of the negative effect of criminal background checks on hiring ex-offenders.  A central concern in this regard is whether the legal mandates to check are in fact consistent with and true to actual business necessity provisions that provide the legal justification for states to impose these requirements. Thus, statues that require criminal background checking, or that exclude ex-offenders from employment licensing or employment should be reviewed.  Consistent criteria should be adopted and universally applied if possible that are appropriate for determining the class of jobs that fall under these restrictions.  Such a review could help uncover those statutes that may overreach in restricting these opportunities given the public interest involved.

 

  2) Common Sense Record Expungement –Risk assessments show that not all ex-offenders are equally at risk for re-offending.  Desistence from crime is a common characteristic for men over 27 years of age.  To the extent that such men with records desist from crime, record expungement for those who have been “clean” for a specified period of time might be considered. Such expungement policies could also serve as a powerful incentive to desist from crime as well.  This is all the more important given that punitiveness  for low level offenses such as drug possession increased markedly over the past 30 years, though currently this is reversing in some states.

 

3) Promote Role of Labor Market Intermediaries - Intermediaries might provide important vouching services to employers as well as case management services to the offenders themselves, to overcome the many barriers they face in finding jobs – such as very limited skills and work experience, residence in poor neighborhoods that limit access to employers and to networks, substance abuse problems, etc.  To the extent that employers have good experiences in working with these, and increased trust, such intermediates can credibly vouch for ex-offenders thereby increasing their employability. 

 

4) Promote Accurate Criminal Background Checks – Information gleaned from background checks should be accurate. Information should also be limited to conviction information, since arrests may not lead to convictions. 

 

5) Indemnify Employers by Promoting Bonding - Bonds are currently available at low cost to insure employers against the financial liabilities they might incur by hiring offenders.  But such bonds are very underutilized by employers at the moment, even though many employers indicate that legal liabilities are among their greatest concerns when hiring from this population. An outreach effort to increase employer awareness of them, and to make these bonds more easily available to employers, should be undertaken. The value of the bonds, currently set at about $5000, should be increased as well to be considered effective insurance.  This might also increase take up rates.

 

Moving Forward

 

Ban the Box does not "hide information from employers;" BTB allows applicants to share more information—in person and in context—with employers, thus expanding both the potential labor pool and the formerly-incarcerated applicants' chances of being hired. Employers still have access to the background check information, but they're just not allowed to make a blanket ban on people with conviction histories at the start of the application process. 

 

Public sector Ban the Box policies both increase the employment rate for formerly incarcerated people rise, and have no negative impact on the callback / hiring rate of people of color without conviction histories, according to Dr. Terry-Ann Craigie's recent study, Ban the Box, Convictions, and Public Sector Employment (Jan, 2017). Dr. Craigie posits that since public employers have strict non-discriminatory hiring practices, as well as the knowledge that the background check will appear later in the hiring process, BTB creates a positive process and culture for all applicants. 

  

Why not require private employers to have the same hiring practices?  And part of those requirements include what background information is received, and how it's used to evaluate its relevance to the job requirements.  There’s an unfortunate and inaccurate assumption that background checks ensure public safety. But most for-profit background check companies are susceptible to inaccurate or outdated information. In addition, background checks using RAP sheets reveal information on arrests where charges are later dropped, which in most states is illegal to use in hiring.   

 

Expungement is another process that can be helpful, but in many states and for federal crimes no conviction data can be cleared. For those jurisdictions that do allow some conviction clearance,  the list of convictions eligible for expungement is depressingly short. Even when a person "clears" their record it may still appear on conviction histories as dismissed. Many employers do not know how to read a conviction history and may not understand that this is not to be considered in the hiring process.  

 

"Ban the Box" is not just an employment law or policy, but part of a movement to have communities, including employers, recognize us as people, not conviction histories.  Moving the background check to after the conditional job offer allows us to be considered as people first, and evaluated in relation to the requirements specific to the job. Better employer education and training is also vital to shifting mindsets and creating better employment hiring policies and practices.  One way we—all of us in this debate—can start is by using language that honors people as individuals instead of statistics or penal code convictions: 

 

 

 

 

We are people with families and skills, not "felons," "criminals," or "offenders," and the language of hiring policies and the studies that drive them should communicate this focus on people, not percentages.  The language matters: a study that refers to us as "criminals" re-enforces dehumanizing mindsets and, thus, policies and practices.  Humanizing language creates a culture that values people—formerly-incarcerated or not—over checked boxes and conviction history. 

 

Better than Ban the Box, the best solution for improving hiring practices: no record at all.  

 

We agree with Fordham professor John Pfaff's conclusion in his soon-to-be released book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) that prosecutors wield extraordinary powers and "Tough on Crime" prosecutors have been one of the main forces behind mass incarceration over the past 30 years.  Community drug diversion and restorative justice programs would have kept the majority of current and formerly incarcerated people out of the criminal punishment system all together, thus rendering Ban the Box almost irrelevant. 

 

For those of us who are incarcerated and impacted by the prison-industrial complex, we as a nation need to adopt the concept of "The Presumption of Rehabilitation upon Completion of the Sentence": once the conditions of the sentence are over, all rights and full citizenship are restored.  Not just for "non-violent" convictions, but everyone who has finished his or her sentence.  The prison system in most states is called "Corrections"—advocating for "The Box" is an admission that the system neither corrects nor rehabilitates.  Unless we, as a society, believe in life-long punishment through the creation of 2nd-class citizens and denial of employment, housing, education, and sometime voting rights. I sincerely hope that is not the case. 

 

Formerly-incarcerated people are part of the community, pay taxes, and deserve access to meaningful employment.  Businesses, as part of the community, are not free to discriminate: they have an obligation to support people and create public safety and healthy living.  Ban the Box / Fair Chance Hiring is just one step, but an important one, to respect people as people.

 

 

Thank you all for your thoughtful comments and for your hard work in the field on this topic. The diversity of opinions and viewpoints shown here highlight the complexity of the issue, and the need for additional information about both ban the box and other policies targeted at improving outcomes for both people with criminal records and people of color. Some of these areas of needed research and testing include:

  • cross-jurisdiction evidence on whether private BTB policies help people with criminal records to get employed;
  • the effect of voluntary versus mandatory ban the box laws;
  • the effect of employability certificates on labor market outcomes by race;
  • the potential for increased equal employment enforcement to reduce racial disparities in hiring (with or without ban the box);
  • the effect of employer education and outreach about ban the box on its impact on young men of color and people with records;
  • analysis of the societal benefits of ban the box beyond their direct impact on job applicants;
  • the effect of the fear of negligent hiring lawsuits on employer decision making;
  • a re-examination of Federal, state, and local employment/licensing restrictions;
  • the role of labor market intermediaries on employment outcomes;
  • a review of policies;
  • the potential for name and address blind applications to minimize the unintended effects of ban the box on people of color;
  • analysis of ways to improve the accuracy of criminal background checks; and
  • the effect of employer bonds against financial liabilities  that might be incurred by hiring people with records on hiring outcomes.

There is no doubt that the collateral consequences of having a criminal record need to be addressed, and that the cycle of discrimination in both the justice system and the labor market need to be disrupted. Hopefully we can all continue to work together to find solutions that work best for both people with criminal records and people of color.