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"The Unintended Consequences of 'Ban the Box': Statistical Discrimination and Employment Outcomes When Criminal Histories are Hidden"

Efforts to help ex-offenders by making it difficult for employers to find out about a job applicant's criminal record can backfire.

Research continues to show that laws prohibiting employers from asking about a job applicant's criminal record may encourage employers to discriminate against young African-American males. Here is the abstract:

Jurisdictions across the United States have adopted "ban the box" (BTB) policies preventing employers from asking about job applicants' criminal records until late in the hiring process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing criminal history information could increase statistical discrimination against demographic groups that include more ex-offenders. We use variation in the timing of BTB policies to test BTB's effects on employment. We find that BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young low-skilled black men.

The EEOC has a similar policy that it justifies as an application of disparate impact liability. I wrote extensively about it in connection with a report by the U.S. Commission on Civil Rights. A good case can be made that the federal government should encourage employers to hire ex-offenders (for example, through the already-existing modest tax deduction program that I discuss in the USCCR report). But to do it by insisting that employers wear blindfolds can have perverse consequences. Young, law-abiding, low-skilled African American men end up paying for offenses they didn't commit.

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  • dwb68||

    First of all, ban the box is no such thing. As you note, they cannot ask until "late" in the process and large employers often run background checks anyway.

    Second, the "cure" for ban the box is a tight and diverse labor market, plus a good school system which teaches job skills. When the labor market is tight employers will hire - and even train - regardless of background. During the recession, many employers added nonsensical requirements like a bachelors degree to positions like receptionist (as a way in part to screen out the many applicants for a single position). Now, the reverse is happening. Employers desperate for workers are reducing requirements and training applicants and many are ignoring red flags or history.

    The government can do all the "encouragement" it wants, but when unemployment is high and there are 3 applicants for every position, employers will take the over-educated Ph.D receptionist.

    Conversely, when the labor market is tight and there is one applicant for every 2 openings, the reverse happens. Employers desperate for workers don't care about certain red flags and are willing to bear the cost to retrain job hoppers.

  • Rev. Arthur L. Kirkland||

    Second, the "cure" for ban the box is a tight and diverse labor market, plus a good school system which teaches job skills.

    Another approach would be to stop appeasing our vestigial bigots and to reduce the influence of old-timey racism in our criminal justice system, especially with respect to drug arrests, juvenile arrests, and convictions. This would require overcoming Republican-conservative preferences.

  • dwb68||

    you missed the point of my post. When unemployment is high, people cannot find jobs. background checks are convenient excuse, but they screen on other silly things as well. Conversely when unemployment is low, employers are desperate and will hire despite real or perceived disabilities like background.

  • Rev. Arthur L. Kirkland||

    I do not believe that prevalence of needy employers would constitute the best, or even a proper, approach to this 'ban the box' issue.

  • dwb68||

    you obviously do not have much experience at all in the private sector.

  • Number 2||

    Here's my suggestion for encouraging employment among ex-offenders: Reducing the number of laws that create "ex-offenders" in the first place!

    Here's another suggestion: jurisdictions like New Jersey that have adopted "ban the box" legislation should also repeal the dozens of laws already on the books, and being added to each year, that prohibit individuals with criminal records from ever working in specific jobs or professions.

  • PaulS||

    We used to hire people thu work release - We spent many months employing and training someone - they were released from jail and "moved out of the area" (hence living too far from the job we had for them). Thus the only outcome was that our unemployment insurance rate went up (due to them collecting for the next two years). No good deed goes unpunished? And yes - at the time of their "release" they were making over $15 an hour.......As an employer I would suggest rather than "banning the box" for the government to concentrate their rule making on transition times - incentives to hire as people are released from prison, as people leave/graduate from high school, as they come off long term unemployment, etc? During times of low unemployment incentives can be as simple as not charging unemployment tax for hiring people during these transition periods (and not charging the companies against their rates if the hire doesn't work out). When more people are looking for work more incentives may be required. Employers who know what they are getting and want to work with the employee toward success will generate the best outcome for ALL. Hiding information doesn't accomplish this.

  • Jonny Scrum-half||

    Why would the employees who "moved out of the area" be eligible for unemployment compensation?

  • PaulS||

    Because when appealed the state unemployment people say so - From memory I think it had to do with their thinking being that prison wasn't really where they "lived" (ie they hadn't really moved) so not being willing to commute a long distance from "home" was an ok reason not to continue to accept employment and therefore they were eligible for benefits

  • ||

    Which is ridiculous on its face. No one should ever get unemployment if they are offered any job, anywhere in the United States.

  • Longtobefree||

    The correct answer to a 'problem' caused by government regulations is never more regulations.

  • MatthewSlyfield||

    For "progressives" it's the perfect answer.

    Government causes a problem, which must be solved with more government, which causes more problems which must be solved with yet more government...

    Rinse, repeat, to infinity and beyond!

  • Rat on a train||

  • Heresolong||

    "incentives to hire as people are released from prison, as people leave/graduate from high school, as they come off long term unemployment, "

    Wouldn't having a good employee that will make you money in the long run be the only incentive needed? This idea that the government should provide incentives to hire certain people just means either that other people who would have been hired won't be, or that the business will hire employees that they don't really need or want. If the business model needed another employee, they would have hired. You are now taking money from other people (reducing jobs) in order to create a job that the free market didn't justify.

  • Smooth Like a Rhapsody||

    You've stumbled into the truth; the government doesn't, contrary to their stated order of priorities, care about criminals, they care about racial disparities.

  • gormadoc||

    They don't care about either: they care about votes.

  • Toranth||

    Only elected politicians care about votes.

    The bureaucrats either don't care, or have personal passion - and nothing is worse than the government being there to "help" you.

  • MatthewSlyfield||

    "Wouldn't having a good employee that will make you money in the long run be the only incentive needed?"

    Problems:

    1. Many people believe, rightly or wrongly that people getting out of prison won't be good employees.

    2. The government itself has created disincentives to hiring those people.

    While there may be good justification fof prohibiting people convicted of certain crimes from working in related fields (financial crimes > cant work in financial services), many states prohibit any one convicted of any felony from working in any field requiring an occupational license. And the list of occupations in which people can work without a license continues to shrink. These laws perpetuate the bias in #1.

    Courts (state and federal) have allowed negligence tort claims to proceed against employers who hire someone with a criminal record who then commit new crimes.

    ---

    On the other side of the equation, it is a net benefit to society as a whole if ex-prisoners can find legal employment as quickly as possible after getting out, even if they aren't the best employees at first.

  • Ben of Houston||

    To give an example, you can't hire sewage workers who have ever been imprisoned. Without the background check, you can't get the sewer license. This is a problem in small towns, as ditch digging and pipe hauling are good jobs for young, uneducated men, who are in short supply, yet many just can't be hired due to being busted for weed several years back..

  • Michael Cook||

    Once upon a time I was a corrections officer in a work release facility in Seattle. One of my memorable inmates was a medical doctor who continued to practice, going out on day passes. His practice was in an abortion clinic, which is what had got him in trouble. He was paid by the procedure and business had been slow so he had taken to paying welfare women $50 each to sign a form saying they had it done, then he would bill the county full rate--way up there.

    Seattle being Seattle, when he was caught he had to pay back about $250K to the county, but he did not lose his medical license or his job! He did have to live in work release for a year, where he and I played chess in the evenings after his hard day at the salt mines.

    Another memorable inmate staggered in late one night (but on schedule, as many workers had odd hour shifts) and almost collapsed at the sign in counter. I reached for the breathalyzer kit when he gasped, "No, I've been shot!"

    He was waiting at a bus stop to come "home" to me when a random drive-by shooter pot-shotted him. His bus came and he jumped on, eager to get back on time and not get violated.

  • Bob from Ohio||

    We had a hiring interview a month or so back, me and two others were doing the interview.

    The applicant [happened to be black] seemed promising. After a background check, we probably would have made an offer.

    Once we explained the need for a background check, we asked if there would be any issues. One recent felony conviction for domestic abuse later, interview ended. No offer made.

    We are pretty small and hire rarely so we do not have a HR dept. or an application. If we were in a "ban the box" jurisdiction, we would have had to waste time and money on someone we [and few others] would have hired.

  • Martinned||

    Or, more likely, you would have hired someone who was perfectly fine for the job and whose felony conviction would have stayed forever unknown to you.

  • gormadoc||

    I'm glad you know so much about an unspecified company's finances and needs. If he's hiring for a caregiver position then the applicant absolutely wasn't fine, as just one example.

  • Bob from Ohio||

    We do background checks because we handle money and there are industry requirements.

    He beat up a woman two/three years ago. He is a garbage human.

  • mad_kalak||

    Would you say he was a garbage human if he was gay, and beat up his gay lover, or if he conviction was for assault for a bar fight?

    Please, women don't need special protections and Victorian Era angst over their status. Equality is a two way street.

  • Bob from Ohio||

    Women are significantly smaller and weaker on average than a man so it is different for physical reasons.

    Its also different for moral reasons. Men being the protectors of women is not a "Victorian Era" value. Sorry, not sorry, if this is not an up to date view.

  • Rev. Arthur L. Kirkland||

    He beat up a woman two/three years ago. He is a garbage human.

    But if he had just grabbed a random woman's pussy, then promptly raw-dogged a porn star after showing her photographs of his wife and newborn son, then argued that she should be forced to carry a child to herm had he been shooting live ammo rather than blanks . . . he would be your hero.

    Spare us your ostensible concern for the interests of women.

  • mad_kalak||

    Rev, your problem is assuming that a Trump supporter was voting for him like he was going to be their pastor. I think everyone knew who and what he was, and voted for him anyway, for a variety of reasons. And I'll avoid that bait about abortion.

    That said, did you swallow the red pill or something, because it's frosty day in hell as you and I agree.

  • Bob from Ohio||

    "as you and I agree."

    That ought to make you re-evaluate your opinion.

  • mad_kalak||

    Normally I would, but with respect, conservative white-knightery is even more ingratiating then feminism, if that's possible, because conservatives are blind to the contradictions of calling for individual equality yet protecting women from themselves. Feminists at least see the contradictions, but consciously ignore them, or like Machiavelli use an image of "women weak" or "women strong" however it's advantageous to them in each case.

  • Bob from Ohio||

    Shrug.

    Recognizing that women are more vulnerable to physical assault and that any man who beats a woman is scum is neither "white-knightery" nor a dismissal of "individual equality".

    I don't want to protect women from themselves but from those who would beat them.

  • mad_kalak||

    That's changing the moral narrative of your initial comment significantly. You went from a universal 'men who beat women are garbage humans', to a man who happens to be bigger than a women (because men are bigger on average) who beats a woman (which you don't know in your story actually was the case) is scum.

    Specifically calling out women for protection is white-knightery of the highest order, not the least of which is because women abuse men quite frequently and that people who beat other people are scum, no matter they gender of the victim or perp.

  • Lee Moore||

    a man who happens to be bigger than a women (because men are bigger on average) who beats a woman (which you don't know in your story actually was the case)

    Not "happens." Leaving aside the disabled and the aged, there's very little overlap between men and women on the upper body strength distribution (which is where the capacity to inflict physical damage is located.) A small man, so long as he is neither aged nor disabled, will almost always be stronger than a big women.

    not the least of which is because women abuse men quite frequently

    Women do abuse men, but (again ignoring the sort of abuse that goes on in institutions) women do not usually inflict any serious damage on men. In fact women physically assault the men they are living with considerably more often (on average) than do men (on women.) But the difference between the sexes in upper body strength mean that the men are the ones who inflict serious damage. Women have to use a weapon to achieve real damage.

    Consequently female on male physical abuse is, to the nearest decimal point, not serious. (See Justice Sotomayor's vicious assault on Justice Gorsuch the other day.)The other way round is serious.

  • Bob from Ohio||

    No, one of the reasons for considering "wife beaters" scum is the physical mismatch. Its not the only reason but it is important.

    I wouldn't hire a convicted "husband beater" either.

  • Lee Moore||

    conservatives are blind to the contradictions of calling for individual equality yet protecting women from themselves

    You are confused as to what "calling for individal equality" constitutes (from a conservative point of view.) It's a claim of equal legal and moral status, not a claim of that all people are equal in their physical and mental powers.

    If you are hunting around for a description of the sort of folk who think that all people are actually equal in their physical and mental powers, "conservative" is not the word you are looking for. Neither is "sane."

  • mad_kalak||

    Depending on how you measure it, 15-40% of domestic abuse victims are men, and are reluctant to report it for fear of being called wimps. And if they do defend themselves with their greater physical strength (again, on average) they are almost always the ones found at fault under the law. The best thing a man can do when a woman goes violent is make sure that he is in a room with two ways out.

    Furthermore, you assume that any confrontation will be like a boxing match, some kind of toe-to-toe contest. Not so my fellow, and anyone who's bigger and stronger is not on an even playing field if caught unware, or if he doesn't have a weapon.

    And you're putting words in my mouth. Men and women are not equal, never have been, never will be. But they are (with certain rare exceptions) equal under the law and supposedly socially. Maybe you're not aware of it, but conservatives have incorporated 2nd wave feminism as the new ground floor. They belie that equality mentality when they, like Bob from Ohio, become white-knights.

  • mad_kalak||

    Depending on how you measure it, 15% or more of domestic abuse victims are men. Likely higher as they are reluctant to report it for fear of being called wimps.

    You assume, wrongly, that domestic fights are toe-to-toe boxing matches where men will come out on top due to size/strength. Size does you no good when caught unaware, or when the woman has a weapon. And if a woman does get violent, the best thing a man can do is be in a room with two exits, as any use of physical force on his part is presumed to make him the culpable one without videotapes or other evidence. God help you if your response to violence directed your way is even a hair disproportionate.

    And you might not be aware of it, but 2nd wave feminism is the new ground floor for conservatives, who preach equality for men and women, yet still white knight like its 1952. Yes, men and women are not equal and never will be, intellectually and physically, but that's beside the point, when women demand equality AND special treatment and conservatives are more than happy to do both.

  • Rev. Arthur L. Kirkland||

    Rev, your problem is assuming that a Trump supporter was voting for him like he was going to be their pastor.

    I assume they voted for him as a slap at modern society, in an attempt to preserve old-timey intolerance for another few years, and because they were gullible and uninformed enough to believe he is successful in life and would be successful in office.

  • mad_kalak||

    Trump's lies are adult fiction, and no better or worse than Obama/Clinton/Bush on backwards. Perhaps more brazen. He's like Martin Luther, if you're going to sin, sin boldly.

    Like I said, people voting for Trump knew what they were getting, which is why the NBC tapes were a blip in the (erroneous) polls.

    How do you define success in office? If measured by productivity and agenda implementation, he's been quite successful. If you measure success by a different metric, such as "social justice," then he's been a disaster.

  • MatthewSlyfield||

    What industry? Why would a domestic abuse conviction have any relevance to his employ-ability in that industry?

  • Bob from Ohio||

    You are kidding.

    Anger issues [and being a rotten person] are relevant to all industries.

    Plus, we have a majority of female employees. They don't deserve to be around that risk.

  • apedad||

    So Bob, we can remove his 2A rights too....right?

  • Bob from Ohio||

    Sure.

    That is the current law.

    Non-violent felony convictions should not lead to a ban imho. But crimes of violence, sure.

  • theobromophile||

    I'll play along.

    Pardon me in advance for being rather emotional about this.

    A while back, I accepted a job at a Fortune 500 company. Within a year, I quit - and basically had a nervous breakdown from the pure evil. One attorney, a long-time employee, described what happened to me there as "the worst thing (he) ever heard of" happening at that company. (For what it's worth, during that time, I lead a project that increased profit - not revenue, profit - by a million dollars.)

    The employee who harassed me had previously harassed another woman employee to the same point - she also quit amidst a nervous breakdown. His previous employer, from what I can surmise, had told him to leave; given the background checks, this would have come up.

    I'm furious that the company allowed me to be treated this way, and just... I hope they burn in hell for KNOWING this guy behaves this way, hiring him anyway, keeping him on, and continuing to let him prey on women.

    You don't hire on abusers - physical, sexual, or mental, those who prey on men, women, the old, the young, the pretty, the disabled, whatever - because your other employees deserve a safe work environment. I go to work to reduce my company's legal risk, help the bottom line, and get money deposited into my bank account in exchange for my skills - not to vindicate someone's notions of "white knight" at the risk of my well-being.

    End rant.

  • Lee Moore||

    This is a particularisation of the general issue, which is that hiring (or retaining) an employee is not simply about the relationship between the employer and the employee. The employer has other relationships to worry about - relationships with other employees, customers, suppliers; to whom the employer has ethical and sometimes legal obligations.

    Employing someone who is a higher than average risk doesn't merely increase the risks for the employer, it increases risks for everyone else who comes into contact with the risky employee. I doubt very much that theobromophile's employer wanted to her to be exposed to a sexual harasser, as they presumably valued her services. But they appear to have underestimated the risks.

    The same point about risks, btw, applies just as well to hiring young women of childbearing age. Pregnancy does not merely inconvenience the employer, it also inconveniences the employees who are going to have to pick up the pregnant employee's tasks, and maybe customers who are going to have to start afresh with someone new.

    The person who is in the best position to determine whether these risks - to the full tangle of relationships - are worth running is obviously the employer. Not the government.

  • David Nieporent||

    You don't hire on abusers - physical, sexual, or mental, those who prey on men, women, the old, the young, the pretty, the disabled, whatever - because your other employees deserve a safe work environment.

    Counterpoint: the penalty for domestic abuse is not permanent unemployment. Unless you're arguing for life w/o parole as the punishment for such behavior, even the worst people need to have jobs.

  • Lee Moore||

    the penalty for domestic abuse is not permanent unemployment

    The criminal law penalty for domestic abuse is not permanent unemployment. But the social penalty is whatever society chooses it to be (within the law.) In practice different employers will have different views of the risk posed by ex cons on their payroll, so it's rather unlikley that no one will be willing to hire them for any job at any wage. Unless they're real scumbags :

    even the worst people need to have jobs

    Nope. The worst people, measured by reference to the wickedness of their crimes, can stay in jail.

  • Number 2||

    Professional football would be one such industry. Ask Ray Rice.

  • mad_kalak||

    *burn*!

  • Martinned||

    Of course, this is particularly true when employers are racist as heck...

  • gormadoc||

    But in this way they create more incentives for marginally racist employers to actually act on their previously unimportant racism. Not being able to know anything about the individual's criminal history early on induces employers to utilize their generalization skills, almost guaranteeing that race will become a factor.

    If you are only worried about "racist as heck" employers (implying they'd deny a job to somebody based solely on race) then it doesn't really matter either way: neither the legislation nor the lack of legislation would get them to hire individuals they are racist towards.

  • Eddy||

    "The EEOC has a similar policy that it justifies as an application of disparate impact liability"

    I guess when all you have is an employment-discrimination hammer, every problem looks like a nail.

    But the complaints the EEOC and others are making seem better addressed to the criminal justice system, not to hapless employers.

    Is the government, through its criminal justice system, promoting racial injustice? Then make that case and suggest remedies.

    Why should the government tell employers, "here, fix this problem we caused"?

    (This is taking the EEOC and other government bodies at face value about their complaints re the criminal justice system)

  • MatthewSlyfield||

    "But the complaints the EEOC and others are making seem better addressed to the criminal justice system, not to hapless employers."

    It needs to be addressed to the civil court system as well, employers have been held liable for negligence in hiring for hiring people with criminal records who then re-offend.

  • Bob from Ohio||

    "employers have been held liable for negligence in hiring for hiring people with criminal records who then re-offend."

    As well they should.

  • Bored Lawyer||

    But the point is, the law is now working at cross purposes. If I refuse to hire X because he is a convicted felon, I run afoul of the EEOC. If I hire him and he commits another crime, then I am liable in a civil case.

  • Bob from Ohio||

    Does the EEOC actually ban a ban on such hiring? Seems to me its just a ban on asking in an initial application.

  • David Nieporent||

    The EEOC has indeed argued that a blanket ban on hiring convicted criminals is discriminatory because it has a disparate impact, yes.

  • ||

    Agreed. Any "ban the box" type laws should grant civil immunity for any vicarious liability or negligent hiring claims.

  • MatthewSlyfield||

    "Why should the government tell employers, "here, fix this problem we caused"?"

    You are using we too broadly here. Agency A is tasked with fixing the problem, but the problem was caused by agency B. Agency A can't do anything about the policies of Agency A which caused the problem.

  • Social Justice is neither||

    Aren't both Agency A and Agency B working for the government and at some point there is either a single body providing conflicting goals or at least similar enough bodies that congruence shouldn't be out of the question.

    You seem to be saying that as long as departments don't talk or consider the overall legal landscape and their bosses don't care then sucks to be you citizen.

  • JeffreyL||

    Law of unintended consequences alive and well

    News at 11

  • ReaderY||

    Perhaps an analogy might help. It's very plausible that one of the unintended consequences of laws against sex discrimination is an increase in workplace sexual harassment, even rape. After all, you can't harass people who aren't there. One could argue that sex discrimination laws cause rape. One could even argue that people who support sex discrimination laws are insensitive to rape and refuse to accept responsibility for the consequences of their positions.

    So should we repeal discrimination laws entirely to reduce harassment? One argument against is that just because rape exists doesn't mean we have to accept it as a given. It seems unfair to ask people to give up rights they're entitled to because of fear of thugs - that's the heckler's veto that Professor Volokh talks out against periodically. You want a society where people's rights are respected, sometimes you can't give in to the thugs, sometimes people have to live dangerously, accept risk, and keep in mind that it's the thugs, not their own behavior, that are causing the problem.

    One doesn't have to see this similarly. But one could.

  • apedad||

    I love it!

    Laws cause crime!

    If there was no law against murder, fraud, etc., then no crime would be/could be committed.

  • David Nieporent||

    "Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with."

  • Bored Lawyer||

    One doesn't have to see this similarly. But one could.

    Or one can use some common sense and understand that there is a difference between refusing to hire someone because of their race and refusing to hire someone because they are a convicted felon.

  • ReaderY||

    But that of course is true if any law that attempts to change previously accepted behavior. Common sense always supports the status quo ante. It was just as true of sex discrimination laws. Indeed, 50 years ago common sense said that boys will be boys and women who go where they don't belong should simply expect to be hit on, thayt's as natural and common sense a consequence as here.

    Part of my difficulty with Professor Herriot is that she tends to assume her point of view as fact, and to supply data whose support of her point of view tends to be circular - it only supports her point of view if one accepts her point of view as a premise. This is as good an example as any. If you start out with the premise that it's natural and normal to presume all black males are crooks until proven otherwise, then of course denying them the opportunity to prove otherwise makes use of the presumption more prevalent. But if one thinks the presumption is as fundamentally wrong as rape is, and isn't willing to accept that white people will be white people, then requiring the law to accept it as a given and base policy accordingly doesn't seem such a clearly common-sense thing to do.

    As Mark Twain put it, some people use statistics the way a drunk uses a lamp-post, for support rather than illumination. This is as good an example of the phenomenon as any.

  • Bored Lawyer||

    Speaking of discrimination and stupid extensions of same, see this:

    BRITAIN: Christian Bakers Win Supreme Court Appeal Over 'Gay Cake'

    www.dailywire.com/news/36963/b.....-paul-bois

    Hopefully the US Supreme Court will follow suit soon. (Here that Jack Phillips has filed a federal action in Colorado because of further pursuit against him by the State authorities. Who knows, maybe that will end up before SCOTUS.)

  • JonFrum||

    Same problem with women - hire one, and she's a walking lawsuit in any guys in the office have more than one testicle. Better to fire all your guys and replace them with women. And then wear a body camera 24/7.

  • mad_kalak||

    And you only have to pay the women 76% of what you'd pay a man too!

  • Michael Ejercito||

    What if they decide to identify as a man to increase their oay?

  • mad_kalak||

    HR would be forced to give you a raise, but only if you're white. The downside, is it would immediately come with mandatory sexual harassment training and a day long retreat to help avoid micro-aggressions and unpack your newfound privilege.

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