Employers tend to dismiss job applications where the “box”—indicating that an applicant has a criminal history—is checked, making it incredibly difficult for ex-offenders to obtain employment.  Ban the Box legislation aims to give ex-offenders a fair chance at employment by allowing them to be evaluated on their merits; employers are more likely to hire ex-offenders after personal contact with them.  However, recent milestones in Ban the Box legislation have raised questions about its efficacy.  Do Ban the Box policies improve employment outcomes of ex-offenders?  Do they exacerbate racial employment disparities?

President Obama announced last November that he would take executive action to Ban the Box for federal hiring.  Senator Booker (D-NJ) and Congressman Cummings (D-MD-7) introduced Ban the Box legislation via the Fair Chance Act (S. 2021 / H.R. 3470).  Large employers such as Target, Walmart, and Koch Industries have already “banned the box,” and over 100 cities and counties have adopted Ban the Box legislation, along with 19 states.  Seven states have removed questions regarding criminal history on job applications for private employers as well.  The U.S. Equal Opportunity Employment Commission (EEOC) has delivered recommendations and guidance with respect to inquiring about an applicant’s criminal history.

It should be noted that not all Ban the Box jurisdictions are identical.  For example, public employers in Connecticut may not inquire about an applicant’s criminal history until the applicant has been deemed otherwise qualified for the position, while public and private employers in Minnesota only have to wait until the applicant has been invited for an interview.  However, the commonality between all these jurisdictions is that they delay the point at which an employer may inquire about an applicant’s criminal history.

Is Ban the Box Legislation Good Policy?      

According to the National Employment Law Project, approximately 70 million people in the U.S. have an arrest or criminal conviction, and the Department of Justice (DOJ) states that more than 650,000 people are released from prison each year.  Further, a disproportionate number of minorities in the U.S. have criminal records.  For example, black men have a 1 in 3 chance of being imprisoned during their lifetime.  Consequently, Ban the Box legislation has the potential to benefit a significant portion of Americans.  In addition, NELP states that Ban the Box legislation will result in economic benefits through an increase in tax revenues and GDP, improve public safety, improve the livelihoods of children and families, assist people with records in obtaining jobs, and benefit employers.  Included in these benefits is the significant reduction in recidivism rates among employed formerly incarcerated persons: employment has been found to be the single most important influence on decreasing recidivism.

Existing research on the effectiveness of Ban the Box legislation is encouraging, at least with respect to improvements in employment outcomes for ex-offenders taken as a whole (I’ll discuss the implications for racial equality below).  In Minnesota, the percentage of applicants hired by the city whose background checks raised conviction concerns jumped from fewer than 6 percent to over 57 percent after the state implemented its Ban the Box law.  In Durham, North Carolina, the percentage of the people with criminal records hired by the city has increased each year since implementation of Ban the Box in 2011, from 2 percent to 16 percent (in 2014).  In addition, 96 percent of applicants recommended for hire prior to a background check were ultimately hired, even after the background check revealed some criminal history.  Further, none of the people with a criminal record who were hired have been terminated because of illegal conduct, and there has not been any increase in workplace crime.  Further research still needs to be conducted on the impact of criminal records on retention and promotion practices.

Does Ban the Box Legislation Exacerbate Racial Disparities in Employment?

It is common knowledge that criminal history significantly reduces one’s chances of employment.  However, these employment outcomes become particularly disturbing when they are broken down by race.  According to a 2003 paper by Harvard sociologist Devah Pager, for applicants without criminal records, 34 percent of whites receive callbacks while only 14 percent of blacks do.  For those with criminal records, 17 percent of whites receive callbacks while only 5 percent of blacks do.  Not only are whites much more likely to receive callbacks than blacks, but whites with criminal records are more likely to receive callbacks than blacks without criminal records.  And, the effect of a criminal record “is 40 percent larger for blacks than for whites” (Pager 2003).

These data suggest that Ban the Box legislation, to be successful, must not only improve employment outcomes of those with prior convictions, but do so in a racially equitable manner.  Existing research illustrates that personal contact with an employer only increased the percentage of blacks with records called back from 4 percent to 6 percent, while increasing that of whites with records from 9 percent to 42 percent.

The data present three major takeaways.  First, Ban the Box legislation has the potential to make it easier for millions of ex-offenders to obtain employment by delaying the stage in the hiring process in which the employer may inquire about an applicant’s criminal history.  Second, the legislation will probably prove to improve the hiring outcomes of ex-offenders overall.  Finally, the legislation may exacerbate racial disparities in employment due to (1) employers using race as a proxy for criminal history and (2) the legislation improving the employment outcomes of white ex-offenders significantly more than black ex-offenders.  A partial answer may be to push for legislation (as has already been done in some states) that prohibits an employer from inquiring into the criminal history of an applicant until after the applicant has been given a conditional offer rather than at the interview stage. However, after analyzing the data, one fact becomes clear: future focus should be on complementing Ban the Box legislation with policies that ameliorate racial employment disparities for those with prior convictions.