Maine Employment Lawyer Blog
In recent years, lawmakers have debated whether to prohibit employers from asking about criminal history on job applications. Those who want to prohibit questions about criminal history in job applications have used the slogan “Ban the Box” because they want employers to remove “yes” or “no” checkbox questions about criminal history from their applications. Supporters of Ban the Box laws believe that the laws will help black workers who are statistically more likely to have criminal histories than white workers. They believe that black applicants will have a better chance of getting called for an interview if they do not have to reveal a criminal history on a job application.
Some states and cities around the country have enacted Ban the Box laws. Researchers recently looked at the effects these laws had on black workers as compared to white workers in New York City and New Jersey. Surprisingly, these researchers found that Ban the Box laws actually hurt black applicants’ chances of getting called for an interview.
What could explain this counter-intuitive result? The researchers who conducted the study have several theories. One theory is that when employers have information about applicants’ races but not their criminal histories, employers base their decisions on the knowledge that, in general, black people are more likely to have criminal histories than white people. While employers cannot require an applicant to reveal her race on a job application, they can infer race from other information such as the address and name of the applicant. If an employer believes that an applicant is black and is unable to determine whether the applicant has a criminal history, it may act under the assumption—either consciously or unconsciously—that the black applicant has a criminal history.
The researchers also theorized that Ban the Box laws might hurt black applicants, as compared to white applicants, because white applicants with criminal records are helped more than black applicants by Ban the Box laws. In other words, the same assumptions about criminal histories that employers make based on race which negatively affect black applicants would positively affect white applicants with criminal records. Employers, without any information about applicants’ criminal histories, may rely on the general knowledge that white applicants are less likely to have criminal histories and that would help the white applicants with criminal records.
The results of this study are similar to another study that we reported on where the researchers studied the effects of banning the use of credit history checks in hiring processes. That study showed that prohibiting credit history checks similarly disadvantaged black applicants, likely, because employers made assumptions about black applicants that they may not have made had they known the black applicants’ credit histories. These studies demonstrate how difficult it can be to combat the effects of racial bias in our society and why it is important to continue to consider new ways to do so.