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Michael Haugen | April 13, 2016
In the New York Times’ “Room for Debate” series, Koch Industries general counsel Mark Holden penned an article recently explaining that businesses themselves ought to be the progenitor of “Ban the Box” policies geared at ex-offender re-entry.
There has been much public debate in the last several months regarding the best way to go about removing onerous barriers to re-entry for ex-offenders returning to society after a period in prison. Foremost among such debates is the observation that stable employment is one of the most significant factors that predict whether someone will return to the criminal justice system, and in light of this, various policies have been proposed and adopted that aim to make it easier for ex-offenders to obtain a job.
One of the main proposals centers around the practice of “banning the box”—the theory that if business owners are prohibited from inquiring about a previous criminal history until a conditional offer of employment is made, an ex-offender’s application won’t be summarily dismissed on the sole basis of that history. As Holden explains, such individuals—who, in applying for jobs in the first place, are demonstrating a willingness to take responsibility for themselves, and contribute to their families and society—are often times hampered by thousands of ancillary (mainly government-imposed) consequences of their convictions, and businesses do themselves a disservice in not considering their applications more deeply:
“Capable and qualified individuals who want an opportunity to work hard and contribute to the community should not be rejected at the very beginning of the hiring process. For employers seeking the best talent, it makes sense for a company to consider all factors, including any prior criminal record, in the context of the applicant’s other life experiences. To do otherwise would be unfair to individuals seeking redemption for prior mistakes.
It is also short-sighted from a business perspective. An estimated 70 million adults in the United States, or one in three, have some type of criminal record. Considering these statistics, it doesn’t make sense to reject an individual at the outset of the hiring process based on a past mistake, especially given the imperfections of the criminal justice system.”
While it is indeed important to facilitate a less burdensome environment in which those with criminal histories can return to lives of productivity and fulfillment—Koch Industries and others have long since banned the box voluntarily, as Holden explains—there is need for more nuanced consideration beyond simply eliminating a question on an application. (Something sorely absent from most calls to address the issue, as proponents are often concerned with expeditiousness before calculation.) To wit, there are serious concerns that exist in allowing government to shirk responsibility for the unintended policy limitations of its own creation in favor of levying new impositions on third parties—namely, business owners.
Whereas businesses and corporations have “banned the box” of their own volition—based on their own specific needs—new regulations compelling companies to remove such inquiries can have multiple adverse effects on business and applicant alike. In a recent column, my colleague Derek Cohen argued that such rules could open businesses to costly civil litigations, incentivize them to utilize temporary staff from placement agencies rather than “shoulder the associated risk with a hiring faux-pas” themselves, and most perversely, would serve to further compound disparities in hiring practices, not alleviate them:
“Notably, several studies have been published illustrating that when barred from criminal history and related information, employers are more likely to make less-equitable hiring decisions.”
Some of those studies have been published by UCLA professor Michael Stoll, who also contributed an article to the Times’ series. According to his research, criminal records searches only reduce employment for those with records when such records preclude them from the position they seek in the first place. Additionally, he states that employers seem to use criminal background checks not necessarily for purposes of exclusion, but to gain additional relevant information:
“But banning the box could lead to unintended consequences if employers without knowledge of an applicants’ record refused to consider those they think might have criminal convictions — such as young, less-educated, black or brown men – even if they don’t. Indeed, previous research I’ve conducted shows that employers who use such checks are more likely than others who don’t do so to hire minority male applicants regardless of whether the applicants have records.”
Bottom line: In the absence of pertinent applicant information, other biases prevail—deservedly or not. Emotional catharsis aside, compulsory elimination of criminal background questions would likely harm those such a policy is geared to help.
An alternative to “fair chances” hiring practices—of which “Ban the Box” is but a part—would be the expansion of record sealing, nondisclosure, and indemnification. For amenable ex-offenders who have demonstrated that they’re prepared to follow the law, their records for certain offenses can be sealed (or nondisclosed) from most public inquiry, while indemnification would protect landlords and business owners from liability for extending housing or employment to such individuals. Right on Crime has roundly advocated these policies in Texas and elsewhere.
Such policies would ease many of the barriers experienced by those seeking employment—occupational licensing reform is a crucial element to this, as well—while forestalling any new requirements on businesses, who ought not to be made responsible for mopping up the consequences of government’s creation.
A win-win is possible in this situation. The question is whether we choose careful deliberation, or hasty ignorance.