Systemic racism, not ban the box, is the problem


Getting a job can be hard. It’s even harder if you’ve been labeled a criminal. I see this everyday as an attorney with the Clean Slate Project, an initiative dedicated to helping people who have criminal records. Nearly 1-in-3 adults in the U.S. have an arrest record and often do not get a fair chance at employment. That’s what ban-the-box policies help change.

Contrary to popular belief, banning the box is as simple as moving the question about one’s criminal history to the end of the hiring process, not eliminating the question entirely. This one little change makes a big difference and has gained traction in North Carolina and other states.

Doing this allows employers to assess applicants based on qualification and skill, conducting background checks only after conditional offers have been made to the most qualified candidates. Candidates are then given the opportunity to explain their criminal history within the context of their lives, and employers can finalize an offer once they confirm that the applicant’s qualifications are not overshadowed by a criminal record. Without ban-the-box, many employers are making this decision by looking at a checked box.

Durham County is an example of where ban-the-box efforts are a proven success. More justice-involved adults are getting jobs and, as a result, they require less support from family or government programs and are less likely to commit crimes in the future. In 2011, a year before adopting ban-the-box, Durham County hired only 35 people with justice involvement. In 2015, three years after adopting ban-the-box, the county extended 70 conditional offers to people with justice involvement, and all 70 were ultimately offered the job even after their criminal histories were revealed through the background check process.

However, these programs are under attack by critics who cite recent studies suggesting that ban-the-box results in less people of color being offered employment. This criticism is premised on the idea that employers who do not know whether a candidate has a criminal record will assume that people of color do have a record. That assumption, critics say, leads to less hiring of people of color across the board.

Address the racism

There are two main problems with this argument. First, critics would rather eliminate the process that exposes systemic racism than address the racism exposed. Second, studies used to support these claims are narrow at best and misleading at worst.

Race-based discrimination in the hiring process is illegal. It has been since the Civil Rights Act of 1964 became law. Yet, this discrimination still happens, often under the pretext of discriminating based on criminal justice involvement. These studies may have exposed employment discrimination, but if you remove a carpet and discover a rotten floorboard, you don’t throw the rug back on, you fix the floorboard. The claim that we should accept an illegal act as the basis for eliminating a successful program is ridiculous.

Further, the studies being used to undermine ban-the-box efforts do not claim that the program is a failure. Surprisingly, these studies find just the opposite – people of color get more interviews and are employed at higher rates after ban-the-box policies are implemented. Negative impacts of the policies are either narrowly applicable to certain demographic breakdowns or not conclusive. That’s not enough evidence to abandon a system that is working well for many.

Ban-the-box isn’t the problem. But it can be part of the solution. We as a country pride ourselves on the ability to work hard to achieve success. Everyone deserves a fair shot at a job, regardless of race. Rather than roll back policies like ban-the-box that are working, we should find more ways to help make sure everyone gets a fair shot.

Kathleen Lockwood is an attorney for the Clean Slate Project. Southern Coalition for Social Justice