Tuesday, September 3, 2019

Why “ban the box” doesn’t work for employers or employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

Last month, the 5th Circuit Court of Appeals upheld an injunction which blocked the EEOC’s guidance on criminal background checks is unlawful, and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which in that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because African-Americans and Hispanics are incarcerated at a rate significantly higher than Whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly labeled after the “box” applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted these laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated in the Ear Hustle clip above, all “ban the box” accomplishes is moving the criminal background check from the application stage to the formal background check stage. Employers that are pre-disposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes; they are just giving felons false hope.

Moreover, according to two recent studies, ban-the-box laws are causing more racial discrimination by improving the hiring prospects for Caucasians, while making them worse for African-Americans and Hispanics.

Thus, if ban-the-box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest), or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban-the-box laws aren’t working towards their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

  1. Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.

  2. Tax credits to incentivize businesses to hire these felons.

  3. A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., we still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).

We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support. If ban the box isn’t working towards this goal, then local, state, and federal governments need to abandon ban-the-box and look for other solutions to this problem.