The law of unintended consequences is brutal. An idea that seems to make enormous sense, that is well-conceived and well-intended, flips on you to bite you in the butt. It’s so unfair. After years of struggle to eliminate a terrible thing, it ends up worse than before. This is the experience after Michigan banned the box.
“Ban the Box” legislation seeks to open doors to employment for people with criminal records by barring employers from asking about records on employment applications. More than 20 states and over 100 municipalities have passed such laws in recent years, some of which govern private employers.
But a major new study released today by researchers at the University of Michigan and Princeton University points to a serious unintended consequence of these laws: While they may indeed improve the prospects of people with records, this gain comes at the cost of encouraging a substantial increase in racial discrimination by employers.
“This consequence is clearly unintended—in fact, Ban the Box is often presented as a strategy for increasing black men’s access to employment,” said Sonja Starr, professor of law at the U-M Law School. “Unfortunately, we think our results strongly suggest that when it comes to this goal, it has backfired.”
Granted, the trade-off is somewhat different, that ex-cons as a group benefit, but the benefit comes at the expense of blacks. But then, the reason for this is the tacit assumption that criminal convictions are a proxy for race, that blacks are more likely to be criminals, to have convictions, and so without confirmation of the fact of who carries the baggage of a criminal record, employers are left to indulge their prejudice, their racist assumption.
The researchers theorize that the reason relates to a phenomenon known as “statistical discrimination.” If employers don’t have information about criminal records, they are more likely to rely on their assumptions—including race-based assumptions. Specifically, employers may assume that black applicants have criminal records (even when they don’t), and that white applicants do not.
Not exactly a real big stretch as theories go. After all, it’s not like blacks aren’t disproportionately arrested, prosecuted and convicted. Before the box was banned, there was a hard metric by which an employer could distinguish job applicants with criminal records from those without, race notwithstanding. Take away their ability to make a fact-based call and they’re left with nothing but prejudice and the odds.
“When you take criminal record information away, some employers seem to simply assume that black men are likely to have criminal pasts,” Agan said. “So black men without conviction records, who won’t be able to reveal that fact to employers, may be the ones who bear the costs of Ban the Box. This is especially troubling because black male unemployment levels are already more than twice the national average.”
While the equation, and its rather obvious academic theorizing, appears to present a dilemma, it reveals the fact that the deeper problems on both sides of the equation remain intact and weren’t resolved by “ban the box” legislation.
On the one side, discrimination on the basis of race is, and has long been, unlawful. And yet, there it is, rearing its ugly head despite the efforts at social engineering through law. There is the legal reaction, sue the bastards. Whether racial animus or disparate treatment, a job applicant who believes he can demonstrate that an employer refused to hire him based on race has recourse.
Yet, at a time when jobs are scarce, when black unemployment is “twice the national average,” is suing (a long term prospect in itself) employers a good way to alleviate prejudice and keep employers in business so they can provide jobs? We need jobs. We need employers to provide jobs. We need employers to provide jobs to any qualified applicant regardless of race. Suing small to medium sized businesses isn’t a great way to expand the job pool for anyone.
On the other side of the equation, the gravamen of the “ban the box” problem is that employers fear hiring people with criminal records. The “why” behind this isn’t changed by depriving employers of the ability to determine who has a record, but why they care in the first place.
We’ve vilified ex-cons as pawns in the War on Crime rhetoric over the past two generations to such an extent that few are willing to take the chance that having an employee with a criminal record is worth the risk. Recidivism? Violence? Fear? Once a criminal, always a criminal. So what if we’re all criminals given our commission of Three Felonies A Day, even though we haven’t all been pinched yet.
That we’ve lost the belief that a person who committed a crime, served his sentence, has paid his debt to society is at the core of the “ban the box” problem. Ex-cons have been the whipping boys of the tough on crime crowd for a very long time, and our heads have been totally twisted to the point where we either believe it so deeply that we’re ready to throw away every person who was every convicted of anything, or we’re just not willing to take a risk that they’ll turn out to axe-murder the customers.
And there is yet another influence pushing employers to reject ex-cons from the payroll. Should something go wrong, an employee who turns out to have a sordid past, a blotch on his record, do anything that causes harm, there will be liability. The employer will be sued for negligent hiring, since everybody knows that giving an ex-con a job is tantamount to putting every customer’s life at risk.
Even if the ex-con does wrong off the clock, the media will make sure that the lede paragraph includes the fact that he works as a cook for Joe’s Diner, and that every person who ever ate waffles took their life in their hands. What business wants to have its name spelled right in a story about how it put a killer in charge of powdered sugar?
The law is a bludgeon. Much as it can force people to forego specific conduct, it does a poor job of changing attitudes or culture, of correcting the wild ideas and base hatred that have been so carefully developed for other purposes.
You want ex-cons not to commit crimes after they’ve been released from prison? Give them jobs. Give them a vested interest in leading a law-abiding life. Give them a future. They really didn’t like prison that much that they’re desperate to go back, and even people coming out of prison need to eat and put a roof over their heads. How are they supposed to do that without jobs?
As for taking it out on blacks because you can’t tell if the guy you’re about to hire is an ex-con or not, so let’s be prejudice against blacks as a proxy, the law has been clear since 1964 that you can’t do that. More importantly, stop confusing where the cops like to police with a race being more criminalish. And black guys need to eat and put a roof over their heads too. Just hire people who can do the job. If you let go of the fear and ignorance, you may well end up with some damn fine employees who truly appreciate that you gave them a job. We need to get past all of this crap, no matter what the demagogues have to say about it.