New Research Questions Whether Ban-the-Box Policies Improve Employment Outcomes

In the past decade, organizations across the United States advocating for Ban the Box laws have gained momentum, helping to pass legislation at the county, state, and federal level. Buoyed by a belief in the concept of redemption, these laws restrict if and when employers can ask applicants about their criminal records. The goal of these laws is to stop employers from inappropriately using criminal background as a selection criterion that causes otherwise qualified candidates to miss a job opportunity. Policymakers hope that these “fair chance” laws will improve employment opportunities for those with criminal records.

A new paper published in International Review of Law and Economics, however, found that Ban the Box policies may not have as significant of an impact as hoped for. The working paper “Ban-the-Box Laws: Fair and Effective?” from Harris Research Professor Robert Kaestner found that these laws had no effect, positive, or negative, on employment for men between the ages of 25 and 44 with a criminal background and less than a college degree.

“There’s a lot of interest in this policy and it seems really in line with the American view of second chances: if they paid their dues, then let’s not penalize people who are often already disadvantaged,” Kaestner said. “But we found basically nothing. These laws had no negative effect, but no positive effect either.”

Kaestner’s research follows on a Journal of Labor Economics study from authors at Texas A&M University and the University of Oregon that claimed Ban the Box laws had a negative effect on young and low-educated Black men. The study speculated that when employers did not have a box for applicants to tick indicating their criminal record, they would revert to biases that some applicants were more likely than others to have a criminal record, negatively affecting groups with higher rates of criminal background.

The laws reviewed in the original study, however, applied primarily to public sector jobs that employ a very small share of people, rather than private sector jobs. Since that study’s publication, more laws have been passed across the country that apply to both public and private sector workplaces.

Kaestner and his coauthor, Harris student Xufei Wang, repeated that paper’s analysis, updated with new private sector laws over a longer period, and found no evidence of the laws’ effect.

Their study reported that prior evidence of any significant effect of Ban the Box laws does not hold up over more expansive analysis. They also found that different types of laws not included in the original study, such as those that apply to private employers, have no meaningful effect on the employment of young men with low education. Finally, they analyzed the effect for state and local government employment and found no evidence of impact.

“That was better than finding a negative effect, but it didn’t have the intended positive boost either,” Kaestner said.

One possible explanation, Kastner suggested, was that industries that are desperate for workers, such as Amazon or Walmart, already hire applicants with criminal histories, so there was no improvement to be made. Another reason could be that lawmakers pass this legislation with no enforcement mechanisms and no penalty for violations. The applicant must know that they were not considered because of inappropriate actions from the employer and then rely on a government agency for help. Kaestner also said that employers could easily use background checks without detection before the final hiring decision.

Another significant factor to consider when trying to improve employment outcomes for this population is how their qualifications may be affecting prospects.

“It really comes down to the fact that low-educated workers do not have the skills that modern economies demand,” Kaestner said. “Without changing their skill set, I don’t think there’s a great chance to increase their employment opportunities and their economic security in a fundamental way.”

Education programs through community colleges or training in technical areas with growing demand such as healthcare could be one way to address the issue more effectively. While Ban the Box laws and other legislation aimed at reducing bias against those with criminal records can be helpful in some respects, the research shows they are not having as significant of an effect as desired.

“I think these are good laws to have on the books. It sets a standard and it’s ethically and morally the correct thing to do,” Kaestner said, “but it still doesn’t address what might be the fundamental problem, which is a low level of skill and experience and a lack of necessary training.”