Ban-the-Box Laws

I don’t think that “ban the box” is the most felicitous expression, but laws that do not allow employers to ask whether an prospective employee has a criminal record have been thusly dubbed. More precisely, they forbid employers from putting a“box” on the application form asking for such information.

Apparently, the impetus behind this regulation was that minority applicants were more likely to have criminal records and thus to suffer discrimination. Because whether or not you have a criminal record is apparently not relevant to your ability to perform on the job.

In the midst of the great policy debate about these laws no one seems to have recommended that the best solution to the problem would be not to commit crimes in the first place. Would this not be better than to institute a rule that relieves you of the social consequences of your actions? Would it not be better to warn people of the extra cost associated with a criminal record?

In addition to doing time people who commit crimes suffer a social stigma. They becomes less desirable and less trustworthy potential employees. Rather than try to eliminate the stigma, why not make it clear that the government is not in the business of allowing you to cover up your bad behavior?

The “ban the box” rules were intended to open job opportunities for minority youth. In fact, they have closed doors to minority youth. If an employer cannot ask whether a candidate has a criminal record he is more likely to reject all applicants who belong to groups that have the highest crime rate. Why, he must ask himself, take the risk?

We are looking at yet another instance where good intentions and inadequate thought has produced a policy that works to the disadvantage of those it is trying to help.

The Wall Street Journal reports:

Despite a low national unemployment rate, millions of Americans remain out of work, stuck in part-time jobs or sitting on the sidelines of the job market—including many with criminal records that turn off potential employers. Policies aimed at preventing firms from screening out ex-offenders can help those applicants get a foot in the door.

But new research suggests that ban-the-box laws—so-called because they eliminate a box on many job applications asking if applicants have a criminal record—are creating a wider racial gap when it comes to which applicants are interviewed and hired. In one study, employers appeared to screen out African-American candidates based on their names, and the callback gap with white applicants widened after ban-the-box laws took effect. Another study looked at Labor Department data and found fewer young, low-skilled Hispanic and black men were employed in U.S. regions that had adopted the policies.

Importantly, the Journal notes in passing that the great economic recovery we are now experiencing is very thin indeed. Workforce participation is low and many Americans are working at part-time jobs. Unfortunately, Obamacare plus minimum wage laws have made it too expensive to hire people full time.

The Journal story continues:

“Employers may tend, absent information to the contrary, to assume that black applicants have criminal records and white applicants do not,” said Sonja Starr, a University of Michigan School of Law professor who studied the introduction of ban-the-box laws in New York City and New Jersey.

Of course, employers are acting rationally. They understand that certain groups of people are far more likely to have committed crimes. They protect themselves and their businesses by filtering out all members of those groups.

Of course, the laws were constructed to allow convicted criminals a way back into the workforce. Surely, that is a worthy goal. Those who cannot hold down jobs will surely be more likely to return to crime.

It is worth noting that a vast number of fine American citizens has been arrested and has a record. We should ask why this is so and whether our failure to make clear that when you commit  a crime you damage the reputation of members of your family and your social group. Something like 30% of find law-abiding American citizens have their names on what is called the FBI’s “master criminal database:”

Tens of millions of Americans have been arrested at some point in their lives—nearly one in three U.S. adults is on file with the Federal Bureau of Investigation’s master criminal database.

A criminal conviction, or even just an arrest record, can make it more difficult to later find work, heightening the risk of recidivism. Many employers are wary of hiring ex-offenders, and questions on job applications about criminal records help hiring managers identify such candidates.

Two dozen states and scores of cities and counties have adopted laws, almost all in the past decade, that bar employers from asking applicants about criminal backgrounds early in the hiring process. The idea is that hiring managers should judge job candidates on individual merit and consider any past criminal behavior in context.

It sounds good. And the problem is certainly real. And yet, we never judge anyone on his or her merit. It takes far too much time to get to know someone and to see him in action. If you are hiring new staff for your company you cannot reasonably judge each applicant as an individual. The same applies to your relationships in your private life.

We judge people according to stereotypes. We judge members of our own community, people who are familiar to us more positively than we judge strangers. And we know that, to the chagrin of many, reputation is not simply attached to individuals. Your good name is not just your good name. You share it with others. If you drag your good name through the mud, other people will suffer the consequences.

If we are seeing things within the context of what is called guilt culture we would like to judge people as individuals. After all, if you have committed a crime, you and only you do the time. And yet, your criminal deeds diminish your own reputation and also the reputation of those who people who are associated with you.

We would like to see everyone as an individual, but one primary deterrent to crime lies in the awareness that others will suffer reputational damage. So, if you eliminate the reputational cost, the effect that the crime will have on others, you have eliminated a good reason for not doing it in the first place.

The Journal concludes:

A second working paper released this summer, by University of Virginia economist Jennifer Doleac and University of Oregon economist Benjamin Hansen, analyzed Labor Department data for U.S. cities, counties and states that had adopted ban-the-box policies. They found black and Hispanic men ages 25 to 34 and lacking college degrees were less likely to be employed after the laws took effect.