A University of Michigan research study shows that “Ban the Box” legislation may lead to an increase in racial discrimination by employers.

“Ban the Box” refers to a push for the removal of questions concerning criminal history on job applications, making it easier for former convicts to receive initial interviews. "Ban the Box" does not prevent employers from eventually running background checks. Rather, the legislation aims to provide applicants with the opportunity to prove their abilities and impress employers in hopes of gaining the chance to re-enter the community.  

According the Ban the Box Campaign website, more than 45 cities and countries and seven states have adopted the policy to reduce employment discrimination based on criminal records. Last year, President Obama encouraged “banning the box” for federal employment. Ann Arbor unanimously voted for this hiring policy for city employment in 2014.

Sonja Starr — a University law professor who conducted the study with Princeton University economist Amanda Agan — said she believed it was important to look into the legislation’s effects, as the law spreads across the nation.

The study focused on racial discrimination, as one of the main arguments for Ban the Box legislation is the policy would increase access to jobs for people of color, especially young Black men.

“Black men in particular face high levels of unemployment, and it is often said that one reason for that is that Black men are disproportionately likely to have criminal records, and employers are too unwilling to hire people with records,” Starr said.

LSA junior Emma Ward, a head research assistant, said she and a large team of student researchers sent fictitious job applications in New York and New Jersey before and after Ban the Box laws were in place. Research assistants were given a group of cities and a fake applicant’s name, race, profile number and business to which each application would go. The profiles were sent in pairs: one Black and white applicant, and one with a criminal background and one without.

Starr said the researchers kept all applications identical except for specific traits, such as the applicant’s criminal record and race. All of the applicants were male.

Results showed there was an increase in racial discrimination towards Black men.

“It’s mixed news for Ban the Box,” Starr said. “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.

The researchers believe that statistical discrimination was in effect, meaning employers use stereotypes — such as that Black men are disproportionately likely to have criminal records — may be true, but they're not applicable to one individual.

“In our case, when the law removed criminal history information from the application, the employers appear to use the race of the applicant to infer whether they had a criminal history — that is, they looked at a Black applicant and assumed they had a very high probability of having a record but looked at white applicants and assumed they had a very low, if any, probability of having a record,” Agan wrote. “Due to this perception, they were more likely to call back white applicants than Black applicants when there was no Box.”

Starr said making those race-based assumptions is illegal, but it'sdifficult to enforce hiring-discrimination laws.

“Essentially, by taking away the ability to discriminate on criminal records, you are going to get something maybe even worse, which is to discriminate on the basis of race because they are using it as a proxy for criminal records,” Starr said. “It may be an irrational proxy that isn’t fair, gauging it on exaggerated assumptions on the rates at which Black males have criminal records.”

White people with records benefit from Ban the Box, but they benefit at the expense of people of color without records, Starr explained.

Both Starr and Agan were surprised by the increase in the employed racial gap since employers were eventually allowed to run background checks.

“Although we suspected this would happen due to some past research and the theory of statistical discrimination, it wasn't clear that employers would change their behavior since they could eventually do a background check,” Agan wrote. “So our results imply that at least some employers perceive a very high cost to interviewing people that may potentially have records.”

Starr said some potential solutions to address this issue were to erase questions on applications that could indicate race or to provide an incentive for employers to hire those with records; however, Starr said these were just ideas and were not part of the larger study.

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