3 Best Practices to Avoid the Unintended Consequences of “Ban the Box” Laws

By Christopher L. Johnson

In a prior post, we discussed the building momentum for “ban the box” regulations (i.e., prohibiting a criminal history check-box on an employment application) seeking to eliminate racial disparities in hiring. New research by Amanda Agan, a Princeton economist, and Sonja Starr, a legal scholar at the University of Michigan, suggests that, at least in some cases, “ban the box” rules may result in the use of race as a proxy for criminal history. This may increase racial disparity in hiring – even in the absence of criminal histories.

For their research paper titled “Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment,” Ms. Agan and Ms. Starr sent out 15,000 fictitious applications to employers in New Jersey and New York City, before and after ban the box laws took effect in those jurisdictions. Some applications were randomly assigned a criminal history and some were not; some were assigned stereotypical white names (like Scott and Cody), while others were given stereotypical black names (like Tyree or Daquan).

The racial gap in callbacks before the ban the box laws was 7% at companies that asked applicants about criminal history. After the laws were enacted, it went up to 45%, suggesting that black applicants were presumed to have a criminal past if the prospective employer was not permitted to inquire. Regardless of these employers’ motives, this data is potential evidence that selection decisions have a disparate racial impact.

Employers who maintain a strong internal Equal Employment Opportunity policy and train their managers, supervisors, and employees on Equal Employment Opportunity laws should be less vulnerable to attempts to use race as a screening criterion to compensate for the lack of criminal history information at the initial stages of the hiring process. Nevertheless, this research presents an occasion for all companies affected by ban the box laws to revisit their hiring practices. Employers should consider these best practices:

Develop and maintain standardized recruiting and hiring processes focused on job-related qualification standards;

Ensure that job selection criteria do not disproportionately exclude certain racial groups, unless the criteria are valid predictors of successful job performance and meet the employer’s business needs; and

Monitor hiring data for EEO compliance to determine whether current employment practices disadvantage people of color or treat them differently.