Unintended Consequences When Employers Can’t Ask About Felonies

The movement to “ban the box” — the box being the section of an employment application that asks job seekers to check whether they have been convicted of a felony — could have the unintended consequence of reducing employment levels among some of those it is intended to help.

That’s the finding of a recent paper written by economics professors Jennifer L. Doleac of Texas A&M University and Benjamin Hansen of the University of Oregon. In some labor markets, a ban the box policy, or BTB, reduces the probability of young black and Hispanic men getting a job by 2.3 percent to 5.1 percent. The finding was deemed robust and statistically significant to a modest degree.

The idea behind Ban The Box is that when employers see “felony conviction” on an initial job application, they tend to shuffle it to the bottom of the pile. This information still comes out in the course of subsequent interviews and paperwork, but by then a prospective employer has a fuller picture of qualities that make an applicant worth consideration.

But in certain labor markets, employers may be using other information as a proxy for identifying individuals who are more likely to have a record, including their address.

“If even a few ex-offenders are more job-ready than some non-offenders, then employers’ statistical discrimination against those with criminal records hurts the most job-ready ex-offenders,” the authors say in the paper.

The study included 855,772 men aged 25-34 in its sample, of whom 503,419 had no college degree. In that subset, 11.9 percent were black, 14.0 percent were Hispanic and the remaining 74.1 percent were white. Forty-six percent of the men used in the sample lived in areas that had mandated BTB as of December 2014. Men most recently released from prison and those with the least amount of education struggle the most to find gainful employment.

Kim Buddin, policy counsel for the ACLU of Michigan, told Michigan Capitol Confidential that Ban The Box is a necessary step, but it cannot be the only change.

“Ban The Box is a necessary and important step in the right direction; however, it does not truly remove barriers to employment or self-sufficiency for returning citizens,” she said. “Without better employment practices, or additional policies in place, simply banning the box from an application will only delay an inquiry into a person’s criminal record.”

Kahryn Riley, director of criminal justice reform for the Mackinac Center for Public Policy, agrees that racial disparities and other obstacles to employment remain.

“This paper confirms what’s been anecdotally observed since states began requiring employers to ban the box a few years ago,” she said. “When employers who are determined to screen for criminal history don’t have access to that data point, they’ll screen for things that they think are a proxy for criminal history, like race and income.”

Buddin said both employers and policymakers need to change their approach.

“A person who is required to disclose their record during or right after an interview is still significantly less likely to receive a second interview or a job offer,” said Buddin. “Because of the racial disparities of the criminal justice system, black and brown communities are most impacted by these discriminatory employment practices. For a more substantial impact, policymakers and employers must commit to limiting the types of crimes that may be considered to only those directly related to the scope of employment, narrowing look-back periods, and delaying criminal record inquiries until conditional offers of employment are made.”

Riley said a culture change led by employers is needed.

“When the government interferes, you get these negative unintended consequences,” said Riley.

Riley said employers who welcome individuals re-entering the workforce after incarceration are generally pleased with their decision.

“People who make these hires do get great results,” said Riley, adding that often these candidates are highly motivated, competent and outperform those who were never arrested.

Recently Gov. Rick Snyder directed state departments to ban the box on their own job application forms. He also restricted state occupational license officials from barring licensure solely on the basis of a criminal record.

Legislation that has passed the Michigan House would bar licensing authorities from considering past civil judgments as evidence of a “lack of good moral character.” It also would severely limit a public employer’s ability to use a person’s criminal record as evidence of this. Organizations representing private employers have opposed extending BTB to their members for fear of liabilities arising from employing a person with a felony record.