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Does 'Ban the Box' Really Work?

Do Ban the Box laws do more harm than good?  That policy, which removes the box on a job application form that asks about a job seeker’s criminal history, aims to give ex-felons a better chance to re-enter the workforce. Some praise the policy’s impact, but research suggests it might have unfortunate unintended consequences, and may even harm young black applicants. WMRA’s Marguerite Gallorini reports.

In the U.S., roughly 70 million people have a criminal history – and that can make re-entry into the workforce difficult. That’s why 29 states, including Virginia in 2015, have adopted so-called “ban the box” laws to mask that history. But do they work? That’s the main question posed by Jennifer Doleac, assistant professor of Public Policy and Economics at UVa’s Frank Batten School, who recently co-authored a study on the subject.

JENNIFER DOLEAC: The best evidence from employer surveys and other research that has been done, has shown that employers seem particularly worried about people who very recently come out of prison, because it can signal that you're still criminally active. In that context they've been more worried about young men. Older men are very unlikely to be committing crime.

Doleac's study does show that employment increases for older black men, and black women. Her biggest worry, though, is the harm done to young black men – who are statistically more likely to be incarcerated than white men, and therefore, more likely to be discriminated against.

DOLEAC: Employers don't just assume the best about everybody. They try to guess who has a criminal record, and then they discriminate against young black men instead. Removing the information doesn't remove the discrimination: it broadens the discrimination to the entire group you're trying to help. It seems like the story is that public employers – government employers – are hiring older black men instead of the young black men, but private employers are hiring young white men instead of young black men.

PHIL HERNANDEZ: Ban-the-box isn't causing that racial discrimination. If anything, it's exposing the racial discrimination that's already there.

That’s Phil Hernandez, a staff attorney at the National Employment Law Project - NELP for short. The organization advocates for worker rights across the board, and it is one of the biggest critics of Doleac’s study.

HERNANDEZ: I think it's a reminder that there are really two forms of discrimination happening here and we have to be vigilant about both. Even as ban-the-box policies are reducing discrimination against people with criminal records, we still are seeing that racial discrimination in the hiring process remains deeply entrenched. And so from our perspective the answer isn't to just say "Well, racial discrimination is happening so let's get rid of ban-the-box policies," our answer is to do more, and not less. Let's also have a comprehensive approach to target the root of the problem of racial discrimination.

DOLEAC: They clearly have a lot more faith in our ability to enforce our way out of this problem than I do. If we think that we could meaningfully ramp up our enforcement of anti-discrimination law in the future, and reduce employers' use of race in hiring then maybe those effects would change, but these were the effects that we saw in the context of 2004 to 2014, given the level of enforcement during that period.

Although they disagree on ban the box, both Doleac and Hernandez are in favor of additional measures to address this complex issue. As a potential alternative, Doleac suggests the idea of “employability certificates.”

DOLEAC: It's not ban-the-box or nothing, right. So these employability certificates are one example that seems really promising. In their current form, they're court-issued certificates, so if you have a criminal record you can go before a judge and if you're able to convince the judge that you've rehabilitated yourself, and that you'd make a good employee, he or she can give you one of these certificates. Some researchers at the University of South Carolina found that the people who had the same conviction but they had a certificate were called back at equal rates to those who had no conviction at all.

HERNANDEZ: We're not opposed to certificate programs. The one thing we would want to make sure of is that those programs aren't actually creating more barriers for people with criminal records.

On top of ban the box, Hernandez wishes to see more investment in apprenticeships, and more enforcement of the already existing guidance from the Equal Employment Opportunity Commission – which a majority of employers are compliant with.

HERNANDEZ: We're also very interested in doing more work around occupational licensing reform. These are situations in which you have to get, basically, permission from a state agency before you're able to engage in work. In too many states, we found that there are categorical bans on individuals with criminal records so that's another barrier that we're trying to take down.

Doleac is also part of a project aiming to facilitate prisoners’ re-entry into society.

DOLEAC: I’m working with Ben Castleman, who is also a professor at UVa.  We are implementing a tablet-based module in jails. It's a series of questions that point you to resources in your community that can help address whatever need you have coming out of jail. Part of the challenge in trying to solve this problem is that this population has a lot of needs, they need to find a job, they need to find stable housing... So it helps inmates develop a transition plan before they get out, and then after they get out we send them text messages to help them stay on track. We just launched in a large jail facility last month.

She hopes the results of that project will help researchers, and policy-makers, understand how best to help former felons find work, and to avoid unfair discrimination.

Marguerite Gallorini was a feelance journalist for WMRA from 2015 -2018.