In the social sciences there’s a law of unintended consequences, when the result of a rule, regulation or policy runs counter to its original purpose.
For all its noble, intended purposes, initial studies have shown that ban-the-box laws may be backfiring — causing more harm than good.
Nearly half of U.S. states have banned employers from asking questions about applicants’ criminal background on job applications — banning the box that asks if they’ve ever had a criminal record. The goal of the law was to prevent employer discrimination against ex-offenders, who may be rehabilitated but can’t get back up on their feet without gainful employment.
However, new research shows ban-the-box laws are creating a wider racial gap when it comes to hiring practices.
According to the Wall Street Journal: “In one study, employers appeared to screen out African-American candidates based on their names, and the callback gap with white applicants widened after ban-the-box took effect. Another study looked at Labor Department data and found fewer young, low-skilled Hispanic and black men were employed in U.S. regions that had adopted policies.”
The reason? Employers who banned the box didn’t automatically cast their preconceived biases at the door — they just implemented them in other ways.
Instead of discriminating against those who had a record, they started discriminating against entire minority populations based on the spelling of the applicant’s name.
“Employers may tend, absent information to the contrary, to assume black applicants have criminal records and white applicants do not,” Sonja Starr, a University of Michigan School of Law professor, who studied the introduction of ban-the-box laws in New York City and New Jersey told the Journal.
Is this racist? Absolutely. But it’s very difficult (if not impossible) for the government to regulate racism out of the human heart.
Advocates for ban-the-box laws don’t fault it for its unintended consequences, but rather the employer — calling for more anti-discrimination suits to be raised.
“We need to be doubling down on enforcing the discrimination laws,” Maurice Emsellem, director of the Access and Opportunity Program at the National Employment Law Project, told the Journal.
The problem with this solution is two-fold: First, it was always the employer that was the problem, that’s why ban-the-box was implemented, to supposedly bypass their discrimination. It didn’t work. It only made it worse.
Secondly, it takes time and money for the victim to bring forward a discrimination case and doesn’t solve their day-to-day problem of finding gainful employment to independently provide for their family.
Abandoning ban-the-box laws should be considered because the regulation doesn’t solve racism in hiring, it only exacerbates it.
If a law’s unintended consequences causes more harm than good, it should be revoked, and other possibilities examined.