Ban The Box Laws Expose Discrimination, But Don’t Fix It

One of the biggest challenges for individuals who have served time in prison is finding employment. Some employers have disqualified applicants with a criminal history across the board. That type of blanket policy violates Title VII because it disproportionately impacts racial minorities.

In an effort to curb that trend, lawmakers have enacted “ban the box” legislation that removes the criminal history check box on employment applications. Granted, employers have good reason to know who they are hiring, and a criminal background history is a business necessity for certain types of jobs. But lawmakers hoped that banning the box at the application stage would eliminate its racially disparate impact.

Unfortunately, a recent study indicates the opposite effect. Two researchers sent 15,000 fictitious job applications to employers before and after ban the box laws took effect. The only difference between the applications is that some had stereotypically white names like Scott and Cody, while others had stereotypically black names like Tyree or Daquan. Some applications had criminal histories assigned; others did not. In pre ban the box applications, the racial gap in callbacks was 7%. For callbacks on applications sans the box, the gap rose to 45%. Employers assumed that black applicants were more likely to have a criminal record and excluded them from consideration.

These results remind us of the need to reinforce these best practices in hiring to prevent racial discrimination, whether intentional or not:

  • Develop and enforce standardized recruiting and hiring processes that focus on job qualifications.
  • Make sure the job selection criteria do not exclude certain racial groups, unless the criteria predict successful job performance and advance the company’s business goals.
  • Monitor the Equal Employment Opportunity hiring data to determine compliance and ensure that hiring practices are not disadvantageous to people of color.

When in doubt, let an employment attorney review your hiring practices to make sure your company is providing equal opportunity for all job applicants. Call us if you need help.

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