The Volokh Conspiracy

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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.