No, “Ban The Box” Does Not Worsen Racial Inequality

A rebuttal to the “unintended consequences” argument that “Ban the Box” legislation worsens overall hiring outcomes for people of color

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The “Ban the Box” movement — a movement to bar employers from asking about a job applicant’s criminal history on an initial job application — has been receiving a lot of pushback in recent months, based on several widely-noted studies that suggest such legislation may actually worsen hiring outcomes for people of color overall.

Ban the Box legislation is intended to help previously incarcerated people, who are disproportionately people of color, obtain jobs and thereby transition back into society. However, in what is described as a classic case of “unintended consequences,” two recent studies suggest that when employers are banned from asking about criminal histories outright, they substitute by instead discriminating more broadly against all black and Hispanic job applicants. Thus, though the legislation is intended to help many people of color, it instead ends up hurting efforts towards racial equality.

This type of argument against progressive legislation is a familiar one, similar to arguments against the minimum wage or affirmative action (e.g., “raising the minimum wage actually hurts low wage workers” or “affirmative action is actually bad for women and minorities”). However, that is not to say we should instinctively dismiss the results of the studies themselves, which are based on sound social science. Dismissing science is what the right-wing does; as these hiring outcomes have been backed up across multiple studies, it’s important to address them on their merits. This is because while the studies may accurately depict an unforeseen consequence of Ban the Box legislation, the resulting conclusion that Ban the Box legislation should be halted or repealed is based on flawed reasoning.

In an excellent series for On Labor, Professor Noah Zatz of the University of California, Los Angeles School of Law breaks down the flaws of such an argument. In short, the argument against Ban the Box based on these recent studies is flawed in three primary ways, in that “it places blame in the wrong place,” “it ignores cumulative effects” of discriminatory hiring practices, and “it relies upon the wrong definition of racial equality.” Below, I summarize Professor Zatz’s rebuttal as well as add a few of my own thoughts.

1. Ban the Box is not the source of racial profiling

Ban the Box legislation gained popularity on the left in the mid-2000s. During that period, previously incarcerated individuals were re-entering the work force in never-before-seen numbers, as a long-term “aftershock” of the tough-on-crime policies of the 1980s and 90s that greatly increased mass incarceration.

The legislation, to be clear, is race-neutral and designed to help white previously incarcerated job applicants as well as people of color. However, due to systemic racial discrimination in the criminal justice system that many have described as the “New Jim Crow,” Ban the Box policies intersect heavily with racial justice movements and are usually driven by racial justice organizations. One widely-noted 2003 study by Harvard sociologist Professor Devah Pager found that white job applicants with a criminal record were more likely to receive a callback for an interview than black job applicants without a criminal record.

Image created by author. Adapted from “The Mark of a Criminal Record” by Devah Pager, Figure 6 (page 958)

In that context, it is important to evaluate the effect Ban the Box legislation has on hiring outcomes for people of color. In the first study noted above, a paper for the National Bureau of Economic Research by Professor Jennifer L. Doleac of the University of Virginia and Professor Benjamin Hansen of the University of Oregon, the researchers looked into hiring outcomes for young, low-skilled, black and Hispanic men. They found that areas that had implemented Ban the Box legislation saw a decrease in the probability of employment of 5.1% for black men and 2.9% for Hispanic men.

Notably, however, white men with criminal records were helped by the Ban the Box legislation. The second study, by Professor Amanda Y. Agan of Princeton University and Professor Sonja B. Starr of the University of Michigan Law School, showed that after Ban the Box policies were implemented, white applicants were called back by employers after the initial job application at over six times the rate of black applicants.

As stated above, these results are believed to be the product of employers essentially replacing “the Box” with broader racial profiling once the box is banned. In an attempt to screen out applicants with criminal records, employers will simply broadly discriminate against black and Hispanic applicants, lowering hiring outcomes for those groups overall.

This has led to some commentators calling for Ban the Box legislation to be halted or repealed. Such calls have come from liberal commentators as often as conservative- for example, writing for Vox, German Lopez said:

It’s obviously not good that we live in a world so racist that employers rely on racism in their hiring decisions if they’re not given other options. But it’s apparently the world we live in — and, for better or worse, our policies might have to acknowledge that.

The underlying assumption to what Lopez is saying, of course, is that there is a two-option choice being presented: since we “live in a world so racist that employers rely on racism in their hiring decisions,” there needs to be a choice made between Banning the Box, or having higher hiring outcomes for people of color.

As Professor Zatz says in his series, however, this is a false choice and not the optimal way of addressing the problem of job discrimination:

By accepting a baseline in which employers engage in racial profiling if they cannot check records, the [unintended] consequences argument lets employers take hostages. If the law won’t let us openly exclude people with records, then we’ll discriminate against people of color without records instead. Therefore, what? Clearly the first best solution would be to suppress both forms of discrimination. We should ban the box and vigorously prevent employers from racially profiling. Free the hostages without paying the ransom.

While it may appear that Ban the Box legislation “causes” the drops in hiring outcomes for people of color, this is an oversimplification of the cause-and-effect at play here. The source of the racial profiling at present is not a desire to screen out applicants with criminal records; if it were, we wouldn’t see an increase in hiring for white previously-incarcerated applicants. To put it bluntly, the source of the racial profiling is racism on the part of the discriminating employers.

This is important to understanding how to address these discriminatory practices: rather than repeal Ban the Box legislation, these studies’ findings should be motivation to empower anti-discrimination agencies like the Equal Employment Opportunity Commissioner or private anti-discrimination organizations like the NAACP or ACLU to litigate discriminatory hiring practices. There are already laws and mechanisms in place to address the type of discrimination being seen here, and it would be most effective to address the problem at its source through these mechanisms.

2. Repealing Ban the Box legislation ignores cumulative effects of discriminatory hiring practices

As Professor Zatz acknowledges, however, in the short-term there is serious under-enforcement of employment discrimination laws, and so it is still important to explore why repealing Ban the Box legislation is harmful to racial justice even with such laws under-enforced.

Ban the Box legislation is important in counter-acting a phenomenon called “bottlenecking.” As coined by Professor Joseph Fishkin of the University of Texas School of Law, bottlenecking is a problem of the “opportunity structure” of a society, the “lattice of forking and intersecting paths through which individuals pursue different jobs and careers, different goods such as money and prestige, and ultimately, different lives.” Within this metaphorical series of paths, a bottleneck, as the name would suggest, is “a narrow place through which people must pass in order to reach many opportunities that fan out on the other side.”

In the context of employment discrimination, bottlenecks are, essentially, discriminatory barriers that prevent certain people from pursuing the jobs and lives they desire. The check-box on a job application asking about an applicant’s criminal record is a bottlneck: it is a barrier to hiring for people with criminal records, it is rooted in discrimination as a result of our discriminatory criminal justice system, and applicants must pass through the barrier to reach the social and economic opportunities the job will provide them.

The danger of bottlenecks is that they serve to further stratify society, creating additional class divisions within existing social classes. In the context of the Ban the Box movement, the Box is a barrier to nearly all employment opportunities for people who have been previously incarcerated; by denying them job opportunities and any hope of economic advancement, it effectively turns previously incarcerated people into a permanent under-class. As Professor Zatz writes:

[I]magine two different labor markets. In one, 20% of workers of color are permanently excluded from all jobs. Each employer excludes the same 20%. In the other labor market, 20% of workers of color are randomly excluded from each job. But it is a different 20% at each employer. If we measure racial discrimination by looking at the rate at which each employer hires people of color, as the studies underlying the perverse consequences argument do, then these two scenarios will look exactly the same. But are we really indifferent between them as a policy matter? It is the difference between 20% of the population being permanently unemployed and the entire population being unemployed 20% of the time.
There is a strong argument that the permanent exclusion of a sub-class is a deeper injustice than a rotating exclusion distributed throughout the class.

Furthermore, as Professor Zatz puts it, “even if, initially, the two patterns result in the same aggregate employment levels, the same might not be true over time.” In the article linked above, Professor Fishkin elaborates:

[I]t may produce bad social consequences to shut those with past criminal convictions out of all job opportunities. When employers refuse to hire people with criminal convictions, they tend to make this bottleneck more severe. When employers instead are open to hiring them, this ameliorates the bottleneck, which creates a variety of positive externalities in terms of the overall reintegration of formerly incarcerated people into society. For many American jurisdictions, that is enough to justify legislation at least nudging, if not pushing, employers to make such choices.

These are the “cumulative effects” Professor Zatz is discussing; to simply repeal Ban the Box without considering these cumulative effects is an insufficient response to the problem presented.

3. Repealing Ban the Box legislation relies on the wrong definition of racial equality

Finally, the most important counterargument to the suggestion that Ban the Box legislation be repealed is that it relies on a fundamentally flawed view of racial equality and racial justice. The right to be free from discrimination is not simply a group right; it is an individual right, and repealing Ban the Box legislation would deny people their rights on an individual level.

To illustrate this point, Professor Zatz uses the landmark Supreme Court case Connecticut v. Teal, describing the facts as follows:

In Connecticut v. Teal, the employer screened promotion applicants using a standardized test that disproportionately excluded African Americans. But among those passing the test, it promoted Blacks at a higher rate. The latter effect offset the former, and so there was no racial disproportionality in aggregate promotions. The employer argued that this lack of any “bottom line” disparity precluded any attack on the test as discriminatory. The Supreme Court disagreed.

The Supreme Court held that the test the employer was using violated Title VII of the Civil Rights Act, and was a discriminatory employment practice, because regardless of the bottom-line number of black applicants hired, other applicants were still experiencing discrimination at the earlier hiring stage. It was these earlier applicants who were each having their individual right to freedom from discrimination violated, and the employer could not avoid responsibility for the discrimination by simply favoring other black applicants later in the process.

Similarly, in areas without Ban the Box legislation, it doesn’t matter what the bottom-line number of black and Hispanic applicants ultimately hired is if the hiring process contains discriminatory practices in the early stages. Looking only at the bottom-line reduces racial equality and justice to a numbers game that disregards individual rights in favor of superficial hiring statistics. As Professor Zatz states,

The bedrock principle is that individuals should not lose employment (or promotion) for reasons traceable to their race. That injustice can arise even when the employer does not commit “disparate treatment” by taking an individual’s race into account. If a racially biased criminal justice system repeatedly convicts people of color who would have remained free had they been white, then those individuals acquire a criminal record because of their race. When they later lose a job because of that criminal record, they have lost that job because of their race. That doesn’t change just because the employer applies the criminal record screen evenhandedly; the applicant would have gotten the job had he been white because he wouldn’t have had a record had he been white.

Here, the Box is the discriminatory violation of individuals’ rights: it discriminates against individuals who were victimized by an unequal criminal justice system. To then favor other applicants of color in the hiring process so that the bottom-line employment numbers are higher does nothing for those people who experienced discrimination at the initial application stage.

This is why arguments for repealing Ban the Box misunderstand racial equality and racial justice: they rely too heavily on the idea that the bottom-line hiring outcomes are the measure of racial equality, rather than absolute freedom from discrimination, at all stages of the process, for every applicant. Racial justice fundamentally cannot exist when the process includes racial discrimination at any point, and Ban the Box legislation is a means to remove discrimination at the initial application stage.

Conclusion

Arguing Ban the Box legislation should not be repealed despite the results of the studies indicating hiring outcomes for people of color are down overall is not to say the results of the studies are unimportant. On the contrary, the results of the studies are very important- which is why it is critical to address them effectively.

Repealing Ban the Box legislation would not be an effective approach to solving the issue of low hiring outcomes for people of color. It does not address the root source of the racial profiling the employers are engaging in, which is the employers’ own racism. It allows for the creation of a “bottleneck” in job opportunities that effectively creates a subclass of individuals who cannot find work because of their race. Lastly, it does not promote racial equality or justice, as it disregards a person’s humanity and individual rights in favor of superficial statistical measures.

Ban the Box legislation is an important step on the road to racial justice in this country. Rather than framed opposite other measures to achieve justice, it should be paired with efforts such as litigation under Title VII, as well as non-legal means such as direct action against discriminatory employers. Though under attack now, this simply means we should support efforts to try to Ban the Box more fervently than ever, and see that the movement continues to spread across the United States.

The full series by Professor Zatz for On Labor, “Ban the Box and Perverse Consequences,” can be read here: Part I, Part II, Part III.

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