A big bipartisan criminal justice reform may have a very bad unintended consequence

One of the big bipartisan criminal justice reforms is to “ban the box”: a change that, in effect, prohibits employers from asking about a job applicant’s criminal history — at least until after a job interview. The idea is to make it easier for ex-offenders to get a job, since they’re not entirely ruled out before they even get a chance to speak for themselves. Laws banning the box have passed in several states, and President Barack Obama recently signed an executive order banning the box for federal agencies.

But this might have a bad unintended consequence: It could worsen racial disparities in the workplace.

Here’s why: When employers don’t have an explicit criminal history to look at, they may resort to other cues — like race — to gauge if someone has a criminal history. So employers will be potentially more likely to assume that just because someone is black or Hispanic, that person is possibly an ex-convict — and disregard his or her application because of it.

New research suggests this is exactly what’s happening in states that have banned the box. Jennifer Doleac summarized the research for the Brookings Institution:

Amanda Agan and Sonja Starr submitted thousands of fictitious job applications before and after “ban the box” went into effect in New Jersey and New York City, randomly assigning race and criminal history to each “applicant.” They then tracked the number of callbacks received. When employers asked about criminal records on the job application, they called white applicants slightly more often than identical black applicants – but that small gap became more than four times larger, and statistically significant, after “ban the box” went into effect. (White applicants with criminal records benefited the most from the policy change – they’re the ones who got a chance to prove themselves in an interview, though it’s unclear if they would have gotten a job offer. Employers are still allowed to check criminal records before making a final offer, so applicants could be turned away at that point.) Because of the randomization, they can attribute this effect to the removal of criminal history information from job applications.

In a separate paper, Benjamin Hansen and I exploit the variation in adoption and timing of “ban the box” policies across the country to measure the policy’s net effects on the employment outcomes of young, low-skilled men. We find that black and Hispanic men without college degrees are significantly less likely to be employed after “ban the box” than before. This result is not explained by pre-existing trends in employment, and persists for several years.

Researchers have found a similar phenomenon with workplace drug testing: When employers don’t drug test, they appear to assume that minority job applicants do drugs, and don’t hire applicants as a result of that assumption.

There’s a good argument that employers shouldn’t discriminate against potential job applicants based on their criminal history or drug use. There are, after all, plenty of capable ex-convicts and drug users who would do fine in a professional environment.

But the fact is employers do care about these characteristics, especially when they’re weighing all sorts of variables and looking at potential hires that are, on paper, fairly close otherwise. So when we try to mask those characteristics employers care about, they simply resort to other, frankly racist methods to analyze the traits they care for.

It’s obviously not good that we live in a world so racist that employers rely on racism in their hiring decisions if they’re not given other options. But it’s apparently the world we live in — and, for better or worse, our policies might have to acknowledge that.