Study Examines How “Ban the Box” Laws Might Affect Race Discrimination in Employment

ApplicationCities around the country are enacting “Ban the Box” (BTB) laws with the aim of helping people with criminal histories reenter the workforce without undue difficulty. The “box” in the law’s name refers to the check box on a typical job application asking if an applicant has any criminal history. Employers routinely dismiss any application with that box checked. While BTB laws most certainly have the best intentions, at least one study has identified a possible unintended side effect in relation to race discrimination. A “field experiment” conducted by researchers at Princeton University and the University of Michigan found a possible increase in racial bias after the enactment of BTB laws. This one study should not be interpreted as a refutation of BTB laws’ purpose or effectiveness. For one thing, they display a correlation without necessarily establishing causation. The study’s findings are still important to understanding the overall issue.

Most BTB laws, including the law in New York City, prohibit employers from advertising job openings in a way that excludes people with records of arrests or convictions. See N.Y. Admin. Code § 8-107(11-a)(a)(1). An employer may not inquire about criminal history until it has “extended a conditional offer of employment to the applicant.” Id. at § 8-107(11-a)(a)(2). If the employer takes an adverse action, such as withdrawing the conditional offer of employment, it must provide the applicant with written notice and give the applicant up to three days to respond. Id. at § 8-107(11-a)(b); N.Y. Corr. L. § 750 et seq. A violation of these provisions is deemed an “unlawful discriminatory practice” under New York City Law. See N.Y.C. Admin. Code §§ 8-107(9), (10); N.Y. Exec. L. § 296(16).

The study, entitled “Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment,” was published by the University of Michigan’s Law and Economics Research Papers Series in June 2016. The abstract states that, while BTB laws might reduce immediate discrimination on the basis of criminal history, this “could risk encouraging statistical discrimination” if “employers may make assumptions about criminality based on the applicant’s race.”

The researchers structured their experiment in a way that engaged in some racial stereotyping. They created 15,000 fictitious job applications using names stereotypically associated with black people and white people, and they sent them to employers in New Jersey and New York City. The unfortunate fact is that black people in the U.S., particularly black males, are statistically more likely to have arrest or conviction records. The researchers wanted to see if BTB laws had any effect on callback rates by employers. They therefore sent half of the applications before the BTB laws in New Jersey and New York City took effect, and they sent the other half afterward.

In New York City, the study found that, overall, white applicants were six percent more likely to get a callback than black applicants. Prior to the BTB law in New York City, applicants without criminal histories were 78 percent more likely to get callbacks, regardless of race, than applicants with criminal histories. The BTB law wiped out that distinction, but the researchers found that, after BTB took effect, the advantage to white applicants over black applicants increased to 45 percent.

Phillips & Associates’ criminal conviction discrimination attorneys represent employees, former employees, and job applicants in New York City, helping them assert their rights under city, state, and federal employment laws. To schedule a free and confidential consultation with an experienced and skilled employee rights advocate, contact us today through our website or at (212) 248-7431.

More Blog Posts:

Ridesharing Company Faces Multiple Class Actions Alleging Unlawful Background Check Practices, New York Employment Attorney Blog, July 29, 2016

New York Laws Imposing Employment-Related Consequences for Criminal Convictions, New York Employment Attorney Blog, July 22, 2016

Research Suggests that Criminal History Discrimination Causes Employers to Miss Out on Good Employees, New York Employment Attorney Blog, June 29, 2016

Photo credit: Flazingo Photos [CC BY-SA 2.0], via Flickr.

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