Employer inquiries into the criminal background of job applicants could actually lessen racial discrimination against minority applicants. That’s the conclusion of a much reported on field study by a pair Michigan economists. Using the adoption of Ban The Box legislation in New York and New Jersey, the authors reported a six-fold increase in the disparity of callbacks received by white and similar minority prospective employees after the legislation took hold. Without recourse to an applicant’s criminal history, employers seem to be assuming that minority applicants have criminal backgrounds.
I find it unsurprising that establishment media outlets have hailed these results as “fascinating” and “unsettling“. Its an alleged poster child for the failure to consider unintended consequences, and it fuels the narrative that societal problems require intricate, non-intuitive solutions. Sendhil Mullainathan summarizes this ethos well: “When we try to end discrimination without addressing the underlying causes of discriminatory behavior, our efforts may accomplish little — and may even backfire.” Some commentators appear to suggest scrapping Ban The Box legislation altogether.
Missing from the liberal response to these findings is Ban The Box’s impact on Title VII prohibitions against racial discrimination and the use of criminal background checks to keep the arrested and convicted unemployed. Proving racial discrimination in the employment context is a tall order, with those alleging unfair treatment likely relying on indirect circumstantial evidence. The Supreme Court established the framework for proving indirect charges of discrimination four decades ago. Once the plaintiff shows that they are a racial minority and were not hired despite adequate qualifications, the burden shifts to the employer to offer a nondiscriminatory reason for their decision to not hire. Employers can and do satisfy that burden with HR policies forbidding the hiring of applicants with criminal records. Criminal records and race covary, leaving minority job-seeekers unduly exposed to the employer’s right to discriminate against criminals. This reality persists despite the EEOC’s increased vigilance towards blanket policies against applicants with records.
Ban The Box removes a powerful tool from employer’s arsenal. When a minority applicant brings a lawsuit alleging racial discrimination, employers will have to concoct a story that doesn’t depend on a racially-biased criminal justice system. Those touting the policy’s unintended consequences seem to discount the significance of employer’s apparently unlawful response. There are few clearer examples of an employer’s discriminatory decision-making than the suspicion that all minority applicants have criminal backgrounds. Ban The Box exposes employers to liability for racial discrimination while protecting the victims of an expansive criminal justice system.
It is mostly true that the law cannot change people’s attitudes and prejudices. Acknowledging this, our politics should be steeped in a commitment to minimize the power of people to act on those prejudices. The coverage of recent studies reporting on the unintended consequences of Ban The Box initiatives, I think, stems from that understanding. It’s been my attempt here to show why the trade-off between discriminating against minorities and against people with criminal records is a choice of under-enforcement of the law and not necessity; why Ban The Box could kill the two proverbially birds with one stone. Before letting you go, though, I can’t help but mention a certain prejudice present in reporting on this topic – people seem a bit too willing to accept and justify the exclusion of people with criminal histories from the workplace. That’s something to think about when we evaluate a policy that would categorically prevent it.