Employer practices
Research Summary

Compliance Challenges of Ban the Box

Ban the Box policies, intended to promote equitable hiring practices for those with criminal records, face challenges due to employer noncompliance. Clear legislation, communication, and enforcement are crucial for effective policy adherence.

Oluwasekemi OdumosuAugust 23, 2023
Source: Law & Social Inquiry Title: Before and after Ban the Box: Who Complies with Antidiscrimination Law? Author(s): Lesley E. Schneider, Mike Vuolo, Sarah E. Lageson, and Christopher Uggen Original Publication Date: December 2021 Read Full Research Article

In the United States, social stigma against people with criminal records present considerable hurdles in multiple facets of their lives, such as securing employment and integrating into society. With the prevalence of easy access to an individual’s criminal history, employers frequently discriminate against individuals who have been involved with the legal system. Hiring discrimination compounds other labor market obstacles faced by this marginalized population, including spatial mismatch, discouragement from the formal labor market, and higher rates of homelessness, disability, mental illness, and isolation, which further impede their ability to secure employment.

Ban the Box (BTB) laws aim to reduce employment discrimination against individuals with criminal records. Job applications often require applicants to check a box if they have a criminal record, which employers frequently use to disqualify individuals with any criminal history. By banning criminal record questions on job applications, BTB laws increase the likelihood of individuals with criminal histories being invited for interviews, where they can potentially overcome the negative perceptions through personal interactions. BTB laws also impose restrictions on when and how firms can inquire about applicants’ criminal histories, facilitating fairer hiring practices. First adopted by Hawaii in 1998, most US residents now live in a BTB or “Fair Chance” jurisdiction due to federal legislation introduced in 2015.

To understand the impact of BTB laws on hiring practices and the factors that influence their implementation, this research study analyzes longitudinal data on Minnesota employers in the Twin Cities from 2007 and 2008, before BTB implementation, and in 2016, after BTB was enacted. The study includes application data and interviews with hiring managers in both periods. Through these methods, the study uncovers factors that contribute to noncompliance, changes in hiring practices, and the role of background checks in the absence of the "box."

Key findings
  • Approximately 20 percent of employers in the sample were noncompliant with BTB laws in 2016, with noncompliance more likely among employers with a history of discriminating against applicants with criminal records before BTB.
  • About 56 percent of applications did not have a criminal history question or background check statement, while 23 percent included a background check statement but no criminal record question. This suggests that even though technically compliant with BTB laws, nearly a quarter of firms signaled the use of criminal history in hiring, which may serve as an alternative gatekeeping method.
  • Interviews with hiring managers revealed that 10 out of 15 used background checks for at least one applicant, often outsourcing the process, yet no hiring managers conducted background checks on all applicants.
  • Background checks were not found to be a primary gatekeeping mechanism at the initial application stage, but they still served as a mechanism to preclude applicants with criminal records during the conditional hire stage.
  • Attitudes of some hiring managers toward applicants with criminal records have become more favorable based on exposure to employees with records, but they did not attribute this shift to the influence of BTB itself. In the 2016 interviews, only one hiring manager stated that they would not want to hire an applicant with any type of criminal background, while in 2008, 25 percent of those interviewed said they would not want to hire someone with a criminal record.
  • Limited knowledge and awareness of BTB among hiring managers was evident, with nearly half of the interviewees reporting not hearing about BTB and over half being uncertain if their business was notified about the law going into effect, which contributed to passive noncompliance.
  • Limited staffing and lack of funding at the Minnesota Department of Human Rights were cited as factors that made it challenging to notify businesses, particularly small ones, and enforce sanctions on noncompliant employers.
  • Learning about BTB requirements typically occurred through human resource personnel, legal contacts, or organizational networks, with these individuals complying to avoid sanctions. Organizations without these staff positions changed more slowly in response to changes observed across the industry, complying to follow standards set by their peers.
  • One manager was willfully noncompliant with BTB due to their confidence in screening applicants with criminal histories fairly and a perceived lack of consequences for noncompliance. Fines for violations in their industry and jurisdiction were capped at a maximum of $2,000 at the time.
Policy, practice, and research implications
  • Organizations tend to respond to BTB laws with varying degrees of compliance, symbolic compliance, or minimal changes to practices, indicating a lack of underlying attitudinal change. Evaluators of the effectiveness of BTB laws should investigate state behavior such as proactive notification, sanctions for noncompliance, and resources dedicated to enforcement.
  • The significant presence of criminal record questions or background check statements on job applications presents a persistent barrier for individuals with criminal histories. Employers often initiate background checks only for applicants considered for an offer, but the presence of background check statements may perpetuate discrimination even after the interview stage. Policymakers could consider enacting carefully designed mandates that minimize subversion of BTB laws, which often occurs through additional gatekeeping mechanisms such as laissez-faire background checks.
  • Further research could explore the influence of business size, human resource departments, and legal services on employer responses to BTB laws, across a variety of labor markets, to better understand their impact on job seekers with criminal records.

The intentions of BTB policies are undermined by employers’ passive noncompliance and limited enforcement. Lack of formal communication and resources for compliance assessment and sanctions contribute to this noncompliance. The study's findings are specific to the Twin Cities, Minnesota labor market, and caution should be exercised in generalizing them to other contexts. Overall, the research highlights the importance of effective communication, enforcement mechanisms, and well-worded legislation to achieve meaningful changes in organizational hiring practices and to reduce discrimination against individuals with criminal records.

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