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Ban the Box Could Have Unintended Consequences

Oct 24 | 2018  by

“Ban the box” is a social-justice campaign focused on giving convicted criminal offenders a better chance at obtaining gainful employment by prohibiting employers from asking about criminal history. But even ban-the-box advocates recognize an employer’s right to know about an applicant’s criminal history.

“Ban the Box” Initiative

“The box” doesn’t take context into consideration. Asking about criminal history results in qualified candidates washed out without a fair chance. So advocates think that criminal-history questions should be asked later in the process – for example when an employer makes a conditional offer or during an interview.

All Michiganders should be concerned because regular employment is key to reducing recidivism. The movement, which seems liberal on its face, has actually gained traction with conservatives: Republican Governor Rick Snyder ordered state agencies to remove “the box” from state employment applications and from state occupational license applications.

Reducing recidivism and creating opportunities for ex-offenders are noble goals. Still, lawmakers may want to exercise caution in adopting ban-the-box legislation. The initiative intends to help the formerly convicted find jobs. In Michigan, minority groups are incarcerated at a much higher rate than non-minority groups. Although it seems that minority ex-convicts would benefit from this initiative, there are unintended consequences.

In some markets, ban-the-box rules result in a lower probability of minority individuals getting jobs. Employers may use other information as a stand-in for criminal history, such as an applicant’s race, income, or geographic location. In effect, ban-the-box initiatives actually increases racial disparity in employment.

Why Some Are Hesitant

Some employers have violent tendencies or dishonesty. There’s a reason two-thirds of ex-convicts are re-arrested within three years. It’s understandable that employers have questions about ban-the-box legislation. Is there negligent hiring liability if an ex-convict behaves badly at work? Is there liability for the employer who doesn’t hire an ex-convict? 

Studies actually suggest that when employers have more information, minority-applicant hiring goes up. According to the Atlantic, black employment rates went up when employers utilized drug tests and criminal background checks. The left-wing ACLU of Michigan and the right-wing Mackinac Center actually agree that what ex-convicts really need is a change in employment practices and culture rather than just a legislatively mandated solution.

Regular employment for ex-convicts means less recidivism and lower unemployment. Those are benefits everyone can get on board with. However, voters and lawmakers considering banning the box should take a hard look at the unintended consequences and private business concerns first.