THE UNINTENDED CONSEQUENCES OF “BAN THE BOX” LAWS

Handcuffs

Last week, researchers at the University of Michigan and Princeton University released the results of one of the latest studies regarding the effects of so-called “Ban the Box” legislation.  Prior to the legislation, employers could ask applicants about their criminal background as part of the employment application process.  This resulted in substantial barriers to employment for minority applicants, particularly African Americans and Latinos statistically more likely to have been incarcerated or have a criminal record.  It has also, some believe, resulted in prison overcrowding.

Both bad things.

To address these issues, several states  have passed “Ban the Box” legislation, including Iowa’s neighbors Illinois, Minnesota, Missouri, and Nebraska.  Some of the laws apply only to prospective state employees, while others extend coverage to private employers.  Each state’s law has its own nuances, but generally the laws prohibit employers from considering a job applicant’s criminal record until the person is being seriously considered for a job or has been given a conditional job offer.  Illinois’ law, for example, “prohibits employers, or any agent of an employer, from considering or inquiring into a job applicant’s criminal record or history until the individual has been determined qualified for the position and notified of an impending interview, or, if the applicant will not be interviewed, until after a conditional offer of employment is made.”  (As a side note, the federal Americans with Disabilities Act and its accompanying regulations place similar restrictions on employers.  Those laws prohibit employers from asking questions about whether an applicant has a disability, or as to the nature or severity of such disability, until after the employer makes a conditional job offer.)

Unfortunately, the researchers at Michigan and Princeton concluded, like several researchers before them, that “Ban the Box” laws are actually resulting in more discrimination against minorities, particularly African Americans.  These researchers found that when an employer cannot ask a Black applicant whether he has a criminal history, the employer will sometimes fill in the blank and assume that, because the applicant is Black, he likely has a criminal history.  With the passage of “Ban the Box” legislation, Black applicants without a criminal history have no way of communicating that to potential employers.

This unintended result is undoubtedly the result of implicit bias, something I have previously blogged about and a topic that has been extensively researched by Project Implicit.  The question then becomes, what next?  The Michigan and Princeton researchers don’t believe that their results “definitely argue against Ban the Box,” but note their results are worrisome and that the debate about criminal records and employment is far from over.

In the last few years, Iowa’s lawmakers have frequently reached a stalemate when it comes to passing progressive or noteworthy legislation, particularly legislation related to employment issues.  I don’t expect Iowa to be passing any “Ban the Box” laws anytime soon.

photo credit:

<a href=”http://www.flickr.com/photos/144110575@N07/27654580142″>Handcuffs with black background</a> via <a href=”http://photopin.com”>photopin</a&gt; <a href=”https://creativecommons.org/licenses/by/2.0/”>(license)</a&gt;

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