Civil Rights

Does prohibiting employers from checking criminal history promote discrimination?

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Often when the state decides to implement reforms of any kind, even the best intentions can have unforeseen consequences. This need to “do something” stems from the misconception that in times of trouble, the government must intervene to set things right because if the government fails to intervene the issue at hand will perpetuate. We’ve seen this attempt at government reform many times in America’s history, where government intervention only makes things worse. 

The international campaign to “ban-the-box” came to the American people as a solution to persuade private employers to remove from their hiring applications the check box that asks if applicants have a criminal record as a means to help individuals with a criminal history through the hiring process.

{mosads}But many issues still surround the ban the box movement, begging the question: Is banning the box increasing the employment of those with a criminal history?


Throughout the history of the United States, Americans have seen many examples of well-intentioned government intervention failing to achieve the desired results.

A primary example of this fallacy of good intentions is the federal sentencing reforms of the late 80s to mid 90s which brought harsh mandatory minimum prison sentences, particularly for drug offenses. The rationale was that longer sentences would reduce the illegal drug trade and violence associated with it. However, the initiative has left thousands of non-violent offenders in prison for decades, causing prison numbers and corrections spending to explode, without the return on public safety that was desired.

Another example is the continuing failure of providing foreign aid. From a humanitarian perspective, providing foreign aid such as food or clothing should be a significant step in success stories for developing countries. However, economists have shown how U.S. food and clothing aid restrict the growth of markets within developing countries by undercutting local businesses. Often the Department of Agriculture will ship grains and other resources to developing countries as a means to keep surplus grain out of U.S. markets, but in return developing countries see stifled innovation and entrepreneurship within the countries, often leaving the poor poorer and economic growth restrained.

Similarly, banning the box, a well-intentioned endeavor to break the cycle of high recidivism amongst offenders being released, may actually increase discrimination against certain demographic groups instead of increasing applicants with a criminal history’s chances of employment. Recent studies from the National Bureau of Economic Research (NBER) and the University of Michigan found that the implementation of ban-the-box policies negatively affected the probability of employment for young, low-skilled minorities.

Employers who cannot legally check for criminal history instead avoid applicants they believe are likely to have a criminal record, and this leads them to avoid interviewing young people of color. Research indicates that when employers have less information about an applicant, they discriminate against minorities. The study from NBER shows a decrease in the probability of employment by 5.1 percent for young, low-skilled black men, and 2.9 percent for young, low-skilled Hispanic men. Similarly, the study from the University of Michigan saw the gap between call backs for white and black applicants increase from 7 percent prior to ban the box policies to 45 percent after.

Overall these findings hint at employer biases that fail to be solved for by ban the box policies—when a job applicant’s criminal history is unavailable, employers unfortunately will simply make assumptions based on the applicant’s race. This is yet another example of failed government reform with good intentions as well as failed behavior manipulation through public policy.

Instead, lawmakers should look at ways to remove barriers from hiring and housing ex-offenders and incentivize private business to hire otherwise qualified ex-offenders. Laws such as record sealing and legal immunity to business owners gets the government out of the way and allows the private sector to hire the best candidate, one who may have made a mistake in their past. As Nobel Prize winning economist Milton Friedman once said, “Concentrated power is not rendered harmless by the good intentions of those who create it.” 

Greg Glod (@Gregglodtppf) is a senior policy analyst for the Texas Public Policy Foundation and the manager of state initiatives for Right on Crime. Taylor Zavala is a research associate with the Think Local Liberty project.

The views expressed by contributors are their own and are not the views of The Hill.


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