There is no bigger stigma for job seekers than having a criminal record. But it's much harder for an ex-prisoner to stay out of prison if he doesn't have a job.
Several states and cities think they've found a way to break that vicious cycle: preventing employers from asking about criminal records in job applications, a policy known as "ban the box." Today the federal government formally proposed a regulation to "ban the box" for federal agencies — they'll be required to wait to check the criminal histories of job applicants until after they've extended a tentative job offer.
It's something advocates have been asking President Obama to do for a long time, and that he officially announced the government would do last fall. Banning the box is a concrete step toward not just reversing mass incarceration in the future, but also making sure its past victims don't slip through the cracks. But it's also a reminder that fixing discrimination is rarely simple — and that the people who are most victimized by a problem might not be the ones most helped by a solution.
What Obama is doing: setting a baseline for federal hiring
"Ban the box" (or, as some advocates call it, "fair-chance hiring") doesn't refer to a single law or policy. There are 19 states and more than 100 cities with some form of ban the box — but they take a lot of different shapes.
Some ban-the-box policies, like the federal one the federal government's proposing, only apply to governments (or in some cases, to governments and contractors); some apply to any employer in the state. Some ban-the-box policies simply delay the point in the process at which an employer can ask about criminal history; others prohibit the employer from finding out anything about an applicant's criminal history until the company is ready to hire him or her.
Many federal agencies already have hiring policies that delay asking about applicants' criminal histories, and the Office of Personnel Management — the "HR department" of the federal government — was already recommending that agencies "wait until the end of the hiring process to initiate the suitability determination and consider the applicant’s criminal record," according to the National Employment Law Project (one of the leading advocacy groups supporting ban-the-box policies). In November, Obama issued an executive order codifying this — turning the OPM "best practice" recommendations into firm regulations whenever possible. And now the OPM has put out a formal regulation.
The regulation is limited. It doesn't cover federal contractors — which are much more likely to be hiring for the low-wage jobs many ex-offenders are most qualified for.
But in one very important regard, it's surprisingly broad. Instead of merely delaying a question about criminal records until later in the application process (as President Obama's initial executive order instructed in November), the proposed regulation actually orders the federal government to decide for sure that it wants to hire someone — and issue a "conditional offer" to them — before checking their criminal history.
It's a fairly straightforward attempt to fix what's become one of the biggest obstacles to successful reentry of ex-offenders.
Having a criminal record is the biggest obstacle out there to getting a job
It's extremely hard for people to reintegrate themselves into society after getting released from prison. And that's especially true if they can't find jobs that will allow them to support themselves and their families without resorting to criminal activity.
But people with criminal records fare much, much worse in the labor market than their peers. A third of all nonworking men between the ages of 25 and 54 have criminal records; in fact, there's some speculation that mass incarceration is a major reason labor force participation has declined among men of prime working age.
Even if ex-offenders can get jobs right out of prison, it's extremely hard for them to stay employed in the long run. One study published by the Russell Sage Foundation showed that while the employment rate among people who had just gotten out of prison was substantially higher than it was before they were incarcerated, "this spike in employment turns out to be transitory. It disappears entirely after one and a half years and actually becomes negative after three years."
The people who are likely to go to prison are disproportionately likely to have other disadvantages in the labor market, too: They're more likely to be low-income and less-educated to begin with. But there's some evidence that the stigma of a criminal record hurts job applicants more than anything else. A study by Harvard sociologist Bruce Western tracked men whose incomes were in the "bottom quintile" (the bottom 20 percent of the income distribution) over the course of 20 years. By the end of the 20-year period, two-thirds of the men who didn't have criminal records had moved out of the bottom quintile. Only one in four of the men who had criminal records had: half as many as their peers without records.
Employers openly discriminate against employees with criminal records
Civil rights laws don't explicitly protect people with criminal records against discrimination due to their history. And over the past couple of decades, criminal background checks for job applicants have become nearly ubiquitous — largely due to how cheap and easy it is to check someone's criminal record in the age of the internet.
In one study, which asked employers whether they'd consider hiring applicants with various liabilities, employers were more resistant to hire an applicant with any involvement with the criminal system whatsoever than one who had any other stigma attached. Simply having been arrested hurt a hypothetical applicant more than long-term unemployment, having a GED rather than a high school diploma, or even not having had any experience with a long-term full-time job.
But the rise in criminal background checks has coincided with the release of tens of thousands of ex-prisoners a year — most of them male and many of them black. The combination of racial bias and criminal stigma rendered this group of people simply powerless in the face of discrimination from employers.
Supporters of ban the box often cite the statistic that when applicants have to disclose criminal records when applying for jobs, having a record reduces the chance of getting called back for an interview by 50 percent. That statistic comes from an experiment done by sociologist Devah Pager in Milwaukee, in which she dispatched white and black students to deliver job applications to 350 businesses. She found that white applicants with criminal records were only half as likely to be called back for interviews as their peers without records. Among black applicants, the disparity was even worse: Applicants with criminal records were only a third as likely to get called back.
When applicants had personal contact with their would-be employers, applicants with criminal records had a better chance of getting called back: "Personal contact appears to mediate the effect of a criminal record, reducing its negative impact," Pager wrote. But simply submitting a job application for an entry-level job generally doesn't give you an opportunity to make a good impression. "Despite the fact that these testers were bright articulate college students with effective styles of self-presentation, the cursory review of entry-level applicants leaves little room for these qualities to be noticed. Instead, the employment barriers of minority status and criminal record are compounded, intensifying the stigma toward this group."
And once ex-offenders know they're vulnerable to discrimination, it's hard for them to be motivated to apply for jobs at all. "There's a real chilling effect of the presence of criminal records," Pager told me. "Ex-offenders tend to remove themselves preemptively because they think, the minute they check the box," they're checking themselves out of the job. "There's good reason for them to think that." But it's also likely to prevent them from applying for jobs even when the employer might not discriminate against them.
"Ban the box" can increase the number of ex-offenders that get hired
The theory behind ban the box is simple, as President Obama himself laid out when he visited a federal prison in July: "If they have a chance to at least meet you," he told a group of prisoners, "you’re able to talk to them about your life, what you’ve done. Maybe they give you a chance."
There hasn't been a systematic review of state and local ban-the-box policies. But a few of the studies that have been done in individual cities or states have revealed that ban-the-box policies have at least some effect on helping ex-offenders get hired — and they certainly don't have drawbacks for employers.
The most persuasive evidence that ban the box helps ex-offenders get hired comes out of Durham, North Carolina, which banned the box in city government hiring in 2011, and county government hiring in 2012. By 2014, more than 15 percent of city employees had criminal records — seven times as many as when the policy was implemented in 2011. Furthermore, when the Durham County government was prohibited from looking into criminal history until an applicant had formally been "recommended" for a job, that recommendation still translated into a job offer 96 percent of the time.
There's less evidence that ban the box helps ex-offenders get jobs in the private sector. A survey of Minnesota businesses after the state passed ban the box in 2014 didn't find evidence that more people with criminal records were hired after the law went into effect. But most employers didn't think the law made hiring much more complicated or expensive, either.
Does ban the box ease racial disparities — or make them worse?
Not much is known about how many ex-offenders get hired after ban-the-box policies go into effect. Even less is known about the type of ex-offenders. And that's cause for serious concern.
Take another look at that chart from the Milwaukee study about the effect of a criminal record on a callback:
The biggest difference in the study wasn't between applicants with and without criminal records. It was between white and black applicants. White applicants with criminal records were more likely to get called back than black applicants without them.
What really worries progressive criminal justice advocates isn't the stigma of a criminal record itself, but how it reinforces existing racial stigma. As the National Employment Law Project's Michelle Natividad Rodriguez told me, "There is a link in the American public's mind between being a person of color and having a record, and criminality."
In a best-case scenario, not asking about an applicant's criminal history forces employers to consider people as individuals. And Rodriguez is adamant that it helps offenders across the board. But it's also possible that the biggest beneficiaries of ban the box are white ex-offenders whom employers were already favorably disposed toward anyway. That's an especially big concern with policies like the one President Obama is enacting, where employers can ask about criminal history after having personal contact with applicants. In that Milwaukee study, personal contact helped white applicants with criminal records a lot — but even with personal contact, only 6 percent of black applicants got called back.
There's even a possibility that banning the box would increase racial discrimination — by allowing employers to assume that any black or Latino job applicant probably has a criminal record. A study by economist Harry Holzer found something similar to this: Employers who conducted background checks on their employees were actually more likely to hire black applicants. But as Pager points out, Holzer was studying employers who didn't have any information about criminal records at all — not those who had them at a later point in the process. But it's still "one risk we need to be aware of — that if you don't give employers full information about someone's criminal history, they'll use race as an easy proxy."
Obama's announcement may be mostly symbolic. That's still a good thing.
The most important function of ban the box might be psychological — not only for job applicants themselves, but also for the American public as a whole.
For applicants, ban-the-box policies send a clear signal that some employers, at least, are willing to consider them as individuals. That's a big improvement on the "chilling effect" that prohibits them from seeking jobs at all. A National Institute of Justice–funded study found that ban-the-box policies "tone down ex-prisoners’ anxiety surrounding the application process and increases the number of employment possibilities that former inmates can pursue."
But Pager suggests that the real benefit of ban the box might be its effects on people who aren't ex-offenders — as a "tool of public education." As the American public has started grappling with mass incarceration and its effects, state and local ban-the-box campaigns have opened people's eyes to the discriminatory "collateral consequences" ex-offenders face. There's a lot more to collateral consequences than hiring discrimination — federal and state housing law prevents many people with criminal convictions (and sometimes their families as well) from living in public housing; state laws bar ex-offenders from getting professional licenses. But banning the box is an easy problem to understand, and an easy thing to ask for. It's "opened a conversation," Pager says, that needed to be had.