Should We Beware of “Ban-the-Box” Laws?

*Catalina Habeych

Recidivism rates in the United States are some of the highest in the world.  See Christina Sterbenz, Why Norway’s Prison System Is So Successful, Bus. Insider (Dec. 11, 2014, 1:31 PM), https://www.businessinsider.com/why-norways-prison-system-is-so-successful-2014-12.  Persons with a criminal history face high unemployment rates, which lead to higher recidivism rates based on various studies.  Sachi Barreiro, What Is a Ban-the-Box Law?, NOLO, https://www.nolo.com/legal-encyclopedia/what-is-a-ban-the-box-law.html (last visited June 15, 2020).  One possible contributor to the high levels of unemployment and recidivism among former offenders in the U.S. is the hiring practice of asking applicants to reveal information about prior convictions in their job applications.  See generally Nicole Fortier & Abigail Finkelman, Stemming the Tide of Recidivism: Banning ‘the Box’, Am. Prospect (May 14, 2014), https://prospect.org/justice/stemming-tide-recidivism-banning-the-box/.  As a result, laws prohibiting employers from asking applicants about their criminal history on initial job applications have gained popularity throughout the U.S.  See Roy Maurer, Ban-the-Box Movement Goes Viral, SHRM (Mar. 10, 2016), https://www.shrm.org/resourcesandtools/hr-topics/risk-management/pages/ban-the-box-movement-viral.aspx.

Although many of the initial ban-the-box laws applied only to government employees, by 2019, thirteen states and the District of Columbia passed ban-the-box laws that apply to private employers.  Barreiro, supra.  In January 2020, Maryland joined those thirteen states.  See Emmett F. McGee, et al., Maryland Becomes Latest State to ‘Ban the Box’, JacksonLewis (Feb. 11, 2020), https://www.jacksonlewis.com/publication/maryland-becomes-latest-state-ban-box.

Not all ban-the-box laws are the same.  See Barreiro, supra.  Although all ban-the-box laws prohibit employers from asking applicants about criminal history on an initial application, some go further and require employers to wait until they have conducted an interview or made a conditional offer of employment before asking about criminal history.  See id.  The growing popularity of ban-the-box laws calls for an answer to the following question: have states with ban-the-box laws seen a reduction in the unemployment rate for former offenders and in overall recidivism?

One recent study, published by the University of Chicago Journal of Labor Economics, states that ban-the-box laws are actually hurting young, low-skilled, black and Hispanic males.  See Patricia Barnes, Study Says “Ban the Box” Policies Hurt (Not Help) Young Minority Job Seekers, Forbes (Mar. 1, 2020, 11:06 PM), https://www.forbes.com/sites/patriciagbarnes/2020/03/01/study-says-ban-the-box-policies-hurt-not-help-young-minority-male-job-seekers/#3a6d905440e8.  The study indicates that ban-the-box laws have stopped employers—in an attempt to avoid hiring prior offenders with recent convictions—from interviewing all young, low-skilled, black and Hispanic men, including those without criminal records.  See id.

Employers want to avoid spending time and money interviewing applicants who are likely to be disqualified due to their criminal history.  Id.  As a result, employers are choosing to forgo interviewing young, low-skilled, black and Hispanic workers based on the assumption that they are more likely to have a criminal history.  Id.  In other words, employers are using an applicant’s race, gender, and age as a proxy for convictions.  See Phil Hernandez, Ban-the-Box “Statistical Discrimination” Studies Draw the Wrong Conclusions, Nat’l Emp. L. Project (Aug. 29, 2017), https://www.nelp.org/blog/ban-the-box-statistical-discrimination-studies-draw-the-wrong-conclusions/.

Despite these negative consequences, some advocates for ban-the-box laws say the regulations are accomplishing what they set out to do: increase job prospects for former offenders.  See id.  Studies show that ban-the-box policies have increased employer callback rates for people with criminal records.  Id.  Advocates argue that the reported negative racial impact of these laws is nothing new and that white applicants, irrespective of their criminal history, are more likely to receive callbacks than black applicants.  Id.  

In addition to the argument that any negative racial impact is commonplace, researchers have said that the negative impacts occur more frequently in areas where black and Hispanic men make up a smaller share of the population.  See Barnes, supra.  Researchers speculate this is the case because it is not practical or feasible for employers to discriminate against young black and Hispanic men when they make up a large segment of the population.  Id.

With many published studies questioning the effectiveness of ban-the-box laws, it will be interesting to see if these new findings will stem their popularity in the future.  See id.; see Hernandez, supra.

*Catalina Habeych is a third-year law student at the University of Baltimore School of Law where she serves as a staff editor for Law Review. Catalina is a member of the Royal Graham Shannonhouse III Honor Society and was a 2019 ACC NCR Corporate Scholar. Catalina has worked as a Research Assistant and Law Scholar for Professor Nancy Modesitt and as a T.A. for Professor Amy Sloan. Following her graduation, Catalina will serve as the 2020-2021 law clerk for the Honorable Anthony Vittoria in Baltimore City Circuit Court.