Without The Box, Employers Are Left With Naked Racism

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.

35 thoughts on “Without The Box, Employers Are Left With Naked Racism

  1. OEH

    I wonder if one of the reasons that employers won’t hire someone with a criminal record is that it’s a proxy for other factors (poverty, intellectual disability).

    In related news, there’s a public outcry going on in Michigan right now over the fact that people on the sex offender registry are allowed to work for therapy hotlines.

    1. SHG Post author

      There may well be other “issues” for which a conviction is a proxy. None particularly valid or good, but they’re there nonetheless.

  2. John Barleycorn

    The meat of this post made perfect sense.

    Especially if you are familiar with the danger within the oppertunity of a rook to queen bishop 4 oppertunity.

    If you are not aware, when rook to queen bishop 4 presents itself it is usually best to ponder your pawn structure before incorporating the relative value of the tactical merits of the move within your deployed strategy.

    Before making such a move, especially when it is unexpectedly presented, it is best to first ponder the possibility that your opponent is making a strategic calculation to undermine your own strategy with a tactical offering that you may regret in in a dozen moves or so.

  3. Erik H.

    “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.”

    No, it isn’t. Employers don’t give a shit about “debt to society.” They care about what evidence a criminal conviction and/or time in jail shows about likely future behavior, social debt aside. It’s personal, not political. Whether “society” should help Ernie Ex-Convict is a different matter from whether a particular employer personally wants to take on the responsibility (and risk) of rehabilitating Ernie. Unless they have some special motivation to make that sacrifice, they’ll pass.

    And it’s also economics-driven. Now that manufacturing jobs are going way down, the competition for them is going way up, so folks are moving into more service-based jobs. But those jobs have a different interplay with a criminal record. Employers who might overlook a conviction for a press operator on an all-male shop floor, are less likely to do it for a customer service rep in a coed office department. And it doesn’t help that service jobs also heavily weight “soft” qualifications like language and demeanor.

  4. Erik H.

    Personally, I hired an ex-military paralegal with a gun-possession conviction. But if I were advising one of my employer clients I’d tell them not to. The risk of future liability is too high.

    And as per my own experience and those of various HR folks, it’s a pain in the ass: You can’t assume that people are telling the truth about what happened, so I once you have a record then you basically need to go and personally track down their information and verify it to make sure it’s OK to hire. That hire took many hours of my time.

    Few folks will take the risk. And even folks who might take the risk won’t spend the time: if HR needs to screen 100 people in a week then they are not going to want to spend the time to track down criminal record details since it takes as much time as doing 20 other folks.

    If people want employers to hire people with convictions they need to implement a strong safe-harbor provision for doing so. You want folks like me to tell my employer clients to hire Charlie, it needs to be low transaction cost.

    More to the point, people need to address it openly and stop pretending that it ISN’T an increased risk and a higher transaction cost. Words like “prejudice” are bullshit, because they imply that those judgments are wrong. How many of those folks have hired a convict? How many would?

    1. SHG Post author

      You are a handsome and fascinating person. Yet, you still don’t get to start a second thread all about you. And protip, you because you’re of the age following the vilification of convicted criminals and have bought into the rhetoric upon which you were raised doesn’t make it real. It just means you believe it because you’ve never known otherwise and are generally gullible. It doesn’t make you less fascinating.

      1. Erik H.

        I don’t “vilify” them. Hell, I hired one.

        But why do you feel the need to pretend that it isn’t an increased risk and cost?

        Even if you assume that they have the same post-conviction behavior, they are still riskier. If they did something wrong that conviction would be waved in front of the jury. So whether or not they are dangerous in reality, it’s still dangerous to the employer. And they still cost much more time.

        1. SHG Post author

          Heh. I’m not racist. Some of my best friends are black. Perfect.

          You really have to stop trying to put what I say into your extremely limited paradigm. One of your problems is that you are incapable of grasping that you really don’t know shit, and keep insisting you do (despite people constantly telling you that you don’t). For Pete’s sake, try to open your mind instead of being the poster boy for Dunning-Kruger.

        2. DavidR

          Erik,

          What is obvious to me (and, apparently, Scott) is that you start from a foundational assumption that anyone convicted of a crime and completed a sentence is still presumed to be dangerous. Once a criminal, always presumptively a criminal. They’re screwed forever and their punishment never ends.

          This was not always the view of the world. While this may be your assumption, as you’ve come of age during the time when all criminals were vilified and dangerousness became the default attribution for anyone convicted of a crime, that wasn’t always the case.

          Scott tried to explain that to you, but you’re too stuck in your own limited experience to grasp that the world was not always the way it was when you suddenly became aware. It’s because of people who are so closed minded that this problem persists. Until you realize how deeply prejudice you are, you can’t let go of it.

          1. SHG Post author

            I was concerned that maybe I had failed miserably to make my post clear enough. Apparently not. The comments today have been less than inspirational.

            1. DavidR

              People may not know law, but everybody’s an expert on jobs. You opened the door to all the crazies who have been dying to leave comments.

          2. EH

            Er… no.
            You keep misreading what I’m saying. Maybe because you don’t do employment law?

            Try this:

            Mike gets accused of sexual harassment at work, three times, by three different people. Mike gets fired.

            Why?

            It isn’t that Mike is necessarily guilty. An accusation is just that. And in this hypothetical Mike isn’t a harasser. He hasn’t done anything, and Mike’s risk of future offense is just the same as everyone else.

            But the employer records of the accusations will come up in any trial. Juries hate those. If Mike DOES actually harass someone, hoo boy are those damages going to go up. Whether or not Mike IS ACTUALLY a “serial harasser,” he’s going to be painted as one.

            So: Why fire Mike? Well, compare him to his good twin. The risk of offense is the same for Mike’s twin. But, the costs to the employer are far higher if Mike offends, than if the twin offends. Not because of reality, but because people assume that “someone who was accused of ___ is more likely to do ___.” So Mike gets fired.

            Now, replace “accused of harassment” with “criminally convicted of something.” And replace “harassment” with “does anything which can vaguely be tied to a conviction, by a zealous plaintiff attorney.” Same thing.

            It may be that Charlie Convict is no more likely to offend than anyone else. But if he DOES offend, the outcome is worse for the employer, than if a non-convict did the same thing. That cost drives employer decisions for Charlie, the same way it does for Mike.

            (risk of bad outcome) * (cost of bad outcome) = total risk exposure. I’m not saying Charlie’s RISK is worse, I’m saying his OUTCOME is worse. Sorry you can’t make that distinction.

            1. SHG Post author

              It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.

              –Mark Twain

              But can you at least not waste so much of my bandwidth in the process?

            2. EH

              [Ed. note: Comment deleted as an act of kindness that a young lawyer doesn’t yet appreciate. Maybe he will some day. Probably not.]

  5. st

    Think about the methods employed by Amanda Agan and Sonja Starr. “We submitted nearly 15,000
    fictitious online job applications.” They lied, 15,000 lies, to employers. Real people with real jobs to do had to waste time and money reading those fraudulent applications. At least some applications from genuine, qualified applicants went into the trash because a fake one edged them out. Then there is the time and money spent on phone calls to the fraudsters, the primary quantum of data used by the study.

    No compensation, no informed consent. Employers lost time, some people may have missed a chance at a job. Both Princeton and the University of Michigan have extensive ethical standards for research involving human subjects. Apparently the professors believe they don’t apply to employers.

    Employers are a small minority, and governments compel them to do all manner of uncompensated bookkeeping, law enforcement, snitching, and so forth. The public approves, everyone knows all employers are exploiting scum. Now these profs from Princeton and U. Michigan, who needed 110 words to list all the sources of funding they received for this fraud, have joined in the fun.

  6. st

    The paper doesn’t mention another effect of “ban the box.” Employers may elect not to hire another person when they are denied information needed to assess the candidates. The position is never advertised, and the lying professors don’t count those.

    Employers may also choose not to advertise open positions, and turn instead to their networks. That protects them against many of the risks of hiring, including being scammed by SJW professors. It also significantly reduces the pool of qualified applicants, which hurts both employers and applicants, regardless of their criminal records.

    Economics happens on the margin, and the innumerable laws and regulations for employers definitely discourage additional hiring. Ban the box is just another straw.

    Most small and medium businesses (SMBs) are marginal. Most don’t last very long. In this 8th year of the Greater Depression almost all SMBs are under significant stress.

    Every new hire is literally a bet the company risk. They can get sued by anyone in a protected class who doesn’t get the job, and since everyone knows all employers are scum, the defendant will have a tough go of it. The government can and does step in at any time with allegations of discrimination, backed up with essentially infinite resources. In either case, the expense of defense can be ruinous.

    If you want more people to have jobs, stop making it so difficult and dangerous to hire anyone. Just let employers hire people who can do the job. Stop presuming that everyone who signs a paycheck is scoundrel who must be micromanaged and coerced at every turn lest he or she screw everyone in sight. If you let go of the fear and ignorance, you may well end up with decent employers hiring some damn fine employees who truly appreciate having a job.

    1. SHG Post author

      So one lengthy, off-topic rant wasn’t enough for you? You get to start another thread for another collateral rant? I feel your pain. I want to feel it elsewhere. Reddit may work.

  7. Ben

    I’ve employed people with minor criminal records, though I don’t specialize in doing so. There are companies I know of which make a point of recruiting directly from prison. It’s just not true that a convict won’t find *any* job unless he’s allowed to conceal his wrongdoing, but the types of jobs he can get will be reduced for sure.

    Some employers don’t want to take the risk, but others are happy to take a risk so long as they are able to know the nature of the risk, and handle it appropriately. Part of that will be assessing whether he accepts responsibility for his actions and is resolved to do better, and part of that will be assessing what kind of jobs you can trust him to do, just in case he relapses. If he’s dishonest, he probably won’t be put in a job handling money, but may get construction work just fine. Or he may be allowed to drive a forklift in the dry goods dept, but not be made a keyholder of the cigarette cage. If he’s violent or has a short temper he wont’ be put in customer service roles, and will need a boss who can handle him, who – shock – might not turn out to be a 100lb woman but a 250lb ex MP foreman. Or it might be the other way about, horses for courses.

    The way to overcome the disability of a criminal record is not to conceal it by law, but to resolve to do better, and then to live it down.

      1. Ben

        I’m saying it’s complicated and depends on the individual circumstances of the employer and the employee. You’re saying there should be a blanket rule because employers can’t be trusted to be human beings. But my view is reductive and simplistic.

        Perhaps you should look those words up? They don’t just mean “views I disagree with” you know.

        1. SHG Post author

          Sorry, Ben, but that’s not what you said, not what I said, and my problem wasn’t that I disgree with you, but you’re a moron. Now, you’re a moron who wants to argue about it despite the fact that he’s contributed nothing worthwhile here. So, now you’re just another non-lawyer moron wasting my time. Bye, Ben. You’re done here.

          1. Ben

            You are right, I didn’t read your article properly. I have done so now.

            I apologise for wasting your time.

  8. mb

    I worked for a moving company for a little while. My second day on the job I was promoted from helper to driver, because they didn’t have enough valid drivers licenses. Everyone who worked there except me was a convicted felon. We made barely over minimum wage, and were fucked out of half our driving time as a matter of standard policy. Worker safety wasn’t even an afterthought. We were forced to pay absurd amounts for the company t-shirt we had to wear. We regularly exceeded the number of hours you are legally allowed to drive, and they hid it by not paying us for the hours. The guys knew something wasn’t right, but didn’t have the math skills to figure out how bad they were getting screwed. I didn’t stay long, because I had any other opportunity at all. Nobody would do that back breaking work in all weather for shit pay for any reason other than to stay out of prison. That’s the job convicted felons can get; almost as bad a punishment as prison. And they would do anything they could to get out of it.

  9. monitorsmost

    “Race is a central characteristic of interest in our study, and we signal race by the name of the applicant.” And here’s the problem with the study right here. You send 15,000 applications to New York and New Jersey. Racially distinct white names = Irish and Italian names. Irish + Italians make up 19.3% of New York’s population and 27.1% of New Jersey. You’re measuring tribalism beyond just white/black.

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