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May 23, 2020

"Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record"

The title of this post is the title of this new paper recently posted to SSRN and authored by Mariah L. Daly, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic remains so timely and important.  Here is this paper's abstract:

Between 70 and 100 million adults have a criminal record of some kind that are revealed by criminal background checks.  One of the most severe and pervasive collateral consequences is difficulty securing gainful employment.  Ban-the-Box reform is crucial as a starting point for fair chance hiring, especially in the age of rapidly developing technology and the largely unfettered ability to get information.  The availability of criminal records has functioned less as a “public safety” precaution and more like a scarlet letter branded on the chest of millions Americans.  Demanding unnecessary disclose of criminal records before a conditional job offer hinders reintegration, increases recidivism, jeopardizes public safety, sabotages the economy, affronts human dignity, and causes devastating harm to society overall.

This paper argues that Ban-the-Box laws should be expanded and made uniform across jurisdictions to help prevent against unjust discrimination based on criminal record.  The vast differences in the levels of protection provided across Ban-the-Box jurisdictions and their shortcomings are analyzed and model Ban-the-Box legislation that incorporates concepts from the most protective existing laws is proposed.

May 23, 2020 at 11:49 AM | Permalink


Is there really any point? If they're determined not to hire ex-cons, then doesn't banning the box just waste everyone's time, since they'll soon find out anyway? Maybe instead make a law against discriminating against anyone whose sentence ended more than five years ago.

Posted by: Keith Lynch | May 24, 2020 2:59:04 PM

Dear Keith Lynch,

Thank you for your question. Below, we have provided a short excerpt from "Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record" answering your question. If you are interested in learning more, the full text is available for purchase on Amazon.

"Some BTB opponents argue that employers remain reluctant to hire ex-offenders regardless of when they find out about applicants’ criminal records; Under this view, Banning-the-Box on an initial job application merely delays an employer’s inevitable decision to exclude the ex-offender from employment--often occurring at a point where both the employer and applicant have heavily invested in the hiring process. However, research indicates that the initial reluctance of many employers to hire ex-offenders does, in fact, decrease as the hiring process continues.

In a study seeking to compare the effects of personal contact between employers and applicants with and without criminal records applying for the same jobs, researchers found that having personal contact with a potential employer reduced the negative effect of criminal history by 15 percent. Ex-offender-applicants who make direct contact are “much more likely to be called back by employers who may wish to provide a ‘second chance’ to an otherwise promising applicant.” Another study found that applicants often compensate for their criminal history with their personality and ability to make in-person contact with hiring managers.Research has also shown that when employers actually meet face-to-face to examine an applicant’s qualifications, their willingness to hire the ex-offenders increases significantly.Therefore, BTB effectively increases the likelihood of ex-offenders getting the jobs they apply for by delaying inquiry into criminal background until at least the interview stage."

Studies mentioned:
-Christopher Uggen, The Edge of Stigma: An Experimental Audit of the Effects of Low-Level Criminal Records on Employment, 52 CRIMINOLOGY 627, 643 (Nov. 2014), available at https://onlinelibrary.wiley.com/doi/abs/10.1111/1745-9125.12051

-Dallan F. Flake, Do Ban-the-Box Laws Really Work?, 104 Iowa Law Review 1079-1127 (Mar. 2019), available at https://ilr.law.uiowa.edu/print/volume-104-issue-3/do-ban-the-box-laws-really-work/

-Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, Annals of the American Academy of Political & Social Science. 623: 195 (May 2009), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3583356/pdf/nihms-439026.pdf

--National Employment Law Project Fair Chance Fact Sheet, "Research Supports Fair-Chance Policies" (Aug. 2016), available at https://www.nelp.org/wp-content/uploads/Fair-Chance-Ban-the-Box-Research.pdf

-Sarah Lageson, Mike Vuolo & Chris Uggen, Legal Ambiguity in Managerial Assessments of Criminal Records, Law & Social Inquiry, 40(1), 175-204 (Apr. 2014), available at http://onlinelibrary.wiley.com/doi/10.1111/lsi.12066/abstract

Posted by: Eliva Press--Author Mariah L. Daly | Jul 20, 2020 7:43:46 PM

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