Ban the Box and Perverse Consequences, Part II

Noah Zatz

Noah Zatz is Professor of Law at the University of California, Los Angeles.

This post is the second in a three-part series.

This is the second in a series of three posts on the prominent perverse consequences argument that “Banning the Box” inadvertently exacerbates the racial inequality it purports to redress.  The first post criticized this argument for positing an either/or choice between suppressing discriminatory record checking and suppressing discriminatory racial stereotyping, rather than embracing a frontal assault on both.  This post criticizes the perverse consequences argument for using the wrong conception of racial equality.

Before continuing, here is a quick review (more details in the first post).  The perverse consequences argument builds on empirical studies that find, counter-intuitively, that limiting employers’ ability to check criminal records may decrease overall hiring of people of color.  This surprising result arises because record checking has opposite effects on two different sub-groups of people are color: those with records are screened out more systematically, but those without records are hired more often.  The former effect arises from racial disparities in the criminal justice system.  The latter effect arises from racial stereotypes about criminality that employers apply when they lack individualized information.  Because the stereotyping effect is larger than the criminal justice disparities effect, in aggregate criminal record checks lead employers to hire more people of color.  Vice versa, banning the box costs jobs on net.  The perverse consequences argument concludes that banning the box undermines racial justice, contrary to its proponents’ aspirations.

My main point in this post focuses on how the perverse consequences argument uses aggregate racial employment levels as the ultimate measure of racial equality.  This is not unreasonable.  Indeed, progressive civil rights advocates often use this metric, especially in contrast to a focus on “discriminatory intent” and in particular to justify the “disparate impact” framework that motivates analyzing records exclusions as racially discriminatory.  Nonetheless, although this metric is highly relevant to detecting racial discrimination, it does not ultimately define racial justice, as I argue at length in a forthcoming article.  This Ban the Box controversy illustrates why.

The aggregate employment metric’s flaw is its insensitivity to the mechanisms that generate aggregate disparities. It is brutally consequentialist.  All members of a racial group are treated as fungible: it doesn’t matter who gets a job or loses a job and why, all that matters is the total number.  This is a powerful antidote to the prevailing obsession with discriminatory intent, which fetishizes process.  But it also cuts the link between racial equality and fairness to the individuals whose jobs and lives ultimately are at stake.  It implies, for instance, that discrimination against one person of color can be cured by randomly hiring another member of the same group – without regard to the injury suffered by the first.  With regard to Ban the Box, it erases the employment discrimination people of color face by virtue of entanglement with a racially biased criminal justice system; these harms are simply “cancelled out” by the employment benefits Ban the Box confers on other people of color who have eluded such entanglement.

Employment discrimination doctrine rightly rejects such aggregate thinking.  Consider an employer that wants its workforce dominated by women who are thin, young, attractive, unmarried, and childless.  Among the few men it hires, however, no such restrictions apply.  Such an employer violates the law by rejecting mothers when it will hire fathers.  It is no defense to argue that women, in aggregate, have nothing to complain about.  This bedrock principle was established in the 1970s by the Supreme Court and has been reiterated frequently since then.

The same point applies to disparate impact claims like those that motivate the racial justice case for banning the box.  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.  Such bottom-line reasoning would countenance discrimination against some Black applicants (those unfairly excluded by the test) based on how the employer treated other Black applicants (those promoted after passing the test).  That disrespects each individual’s right against discriminatory treatment.

Teal is a notoriously confusing case.  The opinion fails to justify having disparate impact claims in the first place if they are not about equalizing aggregate employment levels.  In my view, there is a good explanation.

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.

This pattern of racial exclusion will aggregate into a disparate impact, but that aggregate is the smoke, not the fire.  If the employer blows away the smoke by curtailing other forms of discrimination—racial stereotyping—, the fire still remains.  The racial injury inflicted on those screened out because of their record cannot be cured by how the employer treats those who are screened in.  The perverse consequences critique of Ban the Box is just a retread of the failed bottom-line defense in Teal.

And another thing! See the next post tomorrow.

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