Cities 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.”