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"Ban the box" might just replace one kind of discrimination with another

(But that doesn't mean employers should just go back to discriminating against job applicants with criminal records.)

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It seems like such an elegant solution. Millions of Americans (disproportionately black) have criminal records; people with criminal records have trouble getting hired for jobs, no matter how old, minor, or irrelevant the crime. So if you prevent employers from asking job applicants whether they have a criminal record — a policy known as "ban the box" — you eliminate the bias, right?

That's the logic that's led dozens of cities, a handful of states, and the federal government to enact ban-the-box policies. Some of these prevent all employers from asking about criminal history in job applications; others, like the federal government's, just say that the government won't ask about the criminal records of people applying for government jobs.

But what if ban the box doesn't actually solve the problem — or, rather, what if it replaces one kind of discrimination with another?

That's the unsettling conclusion of a couple of recent studies. Both of them found that ban-the-box policies improved the hiring prospects of white people with criminal records, but not nonwhite ones. In fact, black and Latino job applicants were less likely to get hired after ban the box went into effect.

In one study, white applicants went from being only slightly more likely to get a callback from an employer than black applicants (before ban the box went into effect) to being four times more likely than black applicants to get called back, after ban the box had been implemented.

The conclusion drawn by economist Jennifer L. Doleac (who co-authored one of the studies) is that when employers can't see who has a criminal record, they still avoid people they think are likely to have criminal records — they just have to resort to guesswork. As a result, racial discrimination against black and Latino job applicants (especially men) replaces discrimination based on criminal record.

Ban-the-box policies don't solve discrimination — but neither does getting rid of them

Doleac says the unintended consequences of ban-the-box policies show they do more harm than good, and that the governments that have instituted them need to get rid of them. So does my colleague German Lopez.

I get the logic here. If you're trying to make a policy that reduces racial gaps in hiring, having ban the box (all else being equal) is worse than not having it. The people who appear to suffer most from ban the box are black applicants without criminal records. That's not a group of people you want to punish!

As far as I'm concerned, though, "Should governments get rid of ban-the-box policies?" is the wrong question to ask.

Think of it as a Venn diagram. One circle is "job applicants with a criminal record"; the other circle is "black and Latino job applicants." Ban the box helps people who fall in the first circle but not the second: white job applicants. Allowing employers to ask about criminal history helps people who fall into the second circle but not the first: black and Latino applicants without criminal records.

But the people in the overlap of the Venn diagram — the disproportionate number of black and Latino job applicants who have criminal records — get screwed over either way.

In many cases, racial discrimination played a large part in their involvement with the criminal justice system in the first place. And racial discrimination combined with other forms of discrimination makes it an uphill struggle to rebuild their lives once they're out. Either they're not getting hired because of their race or because of their records, but they're not getting hired.

Many people, disproportionately nonwhite, have trouble getting jobs because of behavior that other people might not have even been arrested for (like possession of marijuana), actions that might have been excused if perpetrated by someone else (like acting in self-defense against a domestic abuser), or crimes they committed under circumstances other people would never have to face (like being coerced into sex work by poverty). That is the problem. It is, to a large extent, the problem ban the box was supposed to help address.

Clearly it isn't addressing the problem successfully, or at least not yet. That seems like a good reason to try to come up with other ways to fix the problem through policy, while working to address the underlying implicit bias that associates blackness with criminality to begin with.

It's not at all clear to me that it's going to be any easier to improve the hiring prospects of black and Latino job applicants with criminal records by allowing employers to judge them based on their histories. It seems more likely to me that it's going to require tackling the problems of racially disparate mass incarceration head on: working to reduce the disparities in who gets arrested, charged, and convicted and incarcerated on one side, and working to ensure that those who do have criminal records don't have their lives destroyed on the other.

Watch: The racism of the US criminal justice system