Two new studies reveal some unintended consequences for the effort to eliminate questions about criminal records from initial job applications. The ban-the-box problems are not caused by the former-felons it was supposed to help, but by the employers who are supposed to be more likely to hire them. WKSU’s M.L. Schultze spoke with an employment law advocate about the turn-about.
The National Employment Law Project – a worker rights group – remains a big fan of ban-the-box efforts like those adopted in Akron, Canton and Cleveland. Staff attorney Phillip Hernandez says it’s an important – and largely successful – effort to help people with criminal records get jobs.
“The philosophy is that if someone has a criminal record, if you’re able to first meet them, perhaps in-person to get a sense of who they are, their life experiences, their work experiences, then an employer might be a little more likely to give a second chance to someone who may be made a mistake when they were a teenager 20 to 30 years ago.”
Twenty-nine states have adopted some version of the laws, and Hernandez says the success stories range from a 33 percent increase in hiring of people with criminal records in Washington, D.C., to a seven-fold increase in Durham, N.C.
Untended consequences
But two recent studies have raised questions about potential unintended consequence of the laws.
One found the callback rate for all people with criminal records did increase. The other found employment increased about 4 percent for older African Americans and improved for African-American women with a college degree. But both also raised red flags when it came to young black men. They were less likely to get callbacks for interviews than before ban-the-box laws were adopted.
“My takeaway from these studies,” Hernandez says, “is not that ban-the- box policies are ineffective. It’s instead that racial discrimination is still unfortunately alive and well in the hiring process.
“Unless young black men in particular can indicate on a job application that they’ve never been involved with the criminal justice system, then the default assumption made by too many employers in too many cases is that they have been.
“The employers are using skin color as a proxy for convictions and criminal history. And I think it’s important to call that what it is. That’s racial discrimination.”
Civil rights laws
Given that reality, Hernandez says the nation should be employing a variety of tools, including enforcing the Civil Rights Act.
“We have to have a comprehensive approach to stamp out racial discrimination in the workplace generally.”
Beyond that, where there are criminal records, “We really believe in clean-slate reforms, policies that expunge old and minor criminal records after a certain amount of time has passed and after that individual hasn’t been involved in any more criminal activity.
He suggests employers consider Equal Employment Opportunity Commission guidance setting perimeters that employers can consider when they are assessing people with criminal records.
“We think that facilitates a good conversation between the employers and the applicants and also helps the employers find good candidates.”
But “I can’t underscore enough the importance of enforcement of anti-discrimination laws. We had a civil rights movement to get those laws on the books. … Those laws stand on giants in our history, and so we shouldn’t act as if they’re empty vessels. We really have to enforce the law and the spirit.”
Of the 29 states with ban-the-box laws, nine apply them to private as well as public employers. None of the laws forbids employers from asking applicants about criminal records at some point in the hiring process.
