Do Ban-the-Box-Laws Really Work?

58 Pages Posted: 28 Jan 2018 Last revised: 17 Jun 2018

Dallan Flake

Ohio Northern University, Pettit College of Law

Date Written: January 19, 2018

Abstract

Ban-the-box laws, which delay an employer’s inquiry into an applicant’s criminal record until later in the hiring process, are gaining remarkable traction at the local, state, and even federal levels. But the assumption that employers will be more likely to hire ex-offenders if forced to evaluate their qualifications before discovering their criminal record has gone largely untested. Empirical uncertainty has given rise to various criticisms of ban-the-box laws, chiefly that they merely postpone the inevitable decision not to hire the ex-offender—often at considerable cost to both the employer and applicant—and, worse yet, that they may actually harm racial minorities by prompting employers to assume all minority applicants have a criminal record in light of their much higher arrest and incarceration rates, and eliminate them from consideration on that basis.

This Article reports the findings of a field experiment I conducted to test both of these criticisms. The experiment entailed applying to food-service job openings in Chicago, which bans the box, and Dallas, which does not, using a fictitious ex-offender applicant profile. One-third of the applications in each city used a black-sounding name, one-third used a Latino-sounding name, and the other third used a white-sounding name. I tracked each application to determine whether it elicited an employer callback (i.e., a request for an interview or additional information) and then used multiple regression modeling to analyze callback differentials between cities and across races. The results refute the contention that ban-the-box laws do not increase employment opportunities for ex-offenders, as applicants were 27 percent more likely to receive a callback in Chicago than in Dallas. The results likewise contradict the claim that banning the box harms racial minorities. All three applicants had higher callback rates when the box was banned, with the black applicant experiencing the largest increase. Still, the black applicant had much lower callback rates than the white and Latino applicants in both Chicago and Dallas, indicating race remains a formidable barrier to employment, regardless of whether an employer is aware of a candidate’s criminal record.

In light of these key findings that banning the box increases an ex-offender’s odds of employment without harming racial minorities, this Article considers the potential costs and benefits of ban-the-box laws, both standing alone and as part of broader efforts to successfully reintegrate ex-offenders into society. Although banning the box may prove helpful in improving ex-offenders’ job prospects, it is hardly sufficient; more is required to ensure that upon release, an ex-offender’s prison sentence does not become a life sentence.

Keywords: employment, employment law, employment discrimination, ex-offender, prisoner reentry, rehabilitation

Suggested Citation

Flake, Dallan, Do Ban-the-Box-Laws Really Work? (January 19, 2018). Iowa Law Review, Vol. 104, 2019. Available at SSRN: https://ssrn.com/abstract=3105433

Dallan Flake (Contact Author)

Ohio Northern University, Pettit College of Law ( email )

525 S. Main Street
Ada, OH 45810
United States

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