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‘Ban the Box’ Policies Encourage Racism, Expert Tells Congress

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WASHINGTON – Rep. Elijah E. Cummings’ (D-Md.) efforts to prevent employers from checking criminal history when hiring will have the opposite desired effect, causing employers to filter out more black men on the assumption that they are ex-offenders, an expert told Congress on Wednesday.

Cummings is the author of the Fair Chance Act, a piece of legislation introduced in April that has garnered 19 co-sponsors, including one Republican, California Rep. Darrell Issa. The law requires that the federal government run a criminal record check only after an agency extends a conditional employment offer. The Maryland lawmaker said that he lives in a neighborhood that is highly concentrated with ex-offenders, and he sees “what they go through.”

“While they may spend time in prison, they find that there are so many barriers to their moving forward that they remain in prison, in a sense, until the day they die,” Cummings said, asking observers to try going unemployed for months at a time without income while trying to support multiple children.

Thirty states and more than 150 cities and counties have implemented “ban the box” policies, which encourage employers to remove criminal record checkboxes from job applications. California, Colorado, Connecticut, Kentucky, Indiana and Utah are among them, and companies likes Walmart, Koch Industries, Home Depot and Starbucks have embraced such policies.

Jennifer Doleac, director of the Justice Tech Lab at the University of Virginia, said studies show that if employers are forced into ban the box policies they will try to guess the potential hire’s criminal history, which is an even worse alternative for blacks. She said employers will assume that African-American candidates are ex-offenders.

“Because having a criminal record is so highly correlated with race and especially a recent conviction with age and whether you have a college degree, in the United States it’s pretty easy to statistically discriminate against young black men who don’t have college degrees,” she told members of the House Committee on Oversight and Government Reform, where Cummings serves as ranking member.

In response, Cummings said that the elephant in the room is racism, and it’s “a big elephant.” He cited a 2004 study by Princeton researchers showing that employers for entry-level positions prefer ex-offender whites over black men.

The researchers worked with 13 men applying for entry level jobs in the restaurant, manufacturing and financial services industries. All 13 carried identical, fabricated resumes and backgrounds. The white ex-offenders received more positive responses than African-Americans without a record, according to the study.

Glenn E. Martin, a black ex-offender who now serves as president and founder of JustLeadershipUSA, told lawmakers a story about how 13 years after leaving prison he was invited to the White House to meet with senior policy advisors, but his 21-year old conviction meant he was not allowed to. This made him rethink the implications for people leaving prison and trying to get hired for entry-level jobs, he said.

“We have created an entire underclass of citizenship in this country, and this government has a responsibility to respond to that,” Martin said.

Chairman Trey Gowdy (R-S.C.) said he remains open-minded on the issue, as he has watched people leave prison in South Carolina and struggle to find employment. The only way they found jobs, he said, was through washing cars.

“Let’s assume your research is correct,” he said to Doleac. “What would work?”

Rather than removing information from the job application process, Doleac lobbied for adding information like certifications from judges and other officials proving a person’s readiness to work. That approach has garnered criticism because such certifications are considered difficult for ex-offenders to obtain, according to testimony.

“The idea of providing more information, rather than taking information away, seems far more promising,” Doleac said.