Before and After Ban the Box: Who Complies with Anti-Discrimination Law?

Abstract

Ban the Box (BTB) laws are an anti-discrimination policy intended to promote employment for persons with criminal records. However, research on law and organizations shows that firms often fail to comply with legal directives or engage in symbolic compliance that fails to alter day-to-day business practices. We consider whether BTB contributed to attitudinal or behavioral shifts among hiring managers and changes in job applications. We analyze a unique set of in-depth interviews (N = 30) and entry-level job applications (N = 305) collected from the same workplaces in 2008 and 2016, assessing the impact of state BTB legislation. We find: (1) that one in five organizations were noncompliant, with noncompliance twice as likely among employers who discriminated against applicants with criminal records pre-BTB and that widespread lack of knowledge and lack of enforcement of BTB appears to affect noncompliance; (2) organizations maintained considerable continuity in hiring practices and attitudes between 2008 and 2016, regardless of personnel changes and statewide implementation of BTB; and (3) post-BTB, strong warnings about criminal background checks at later stages of the hiring process emerged as an alternative source of gatekeeping. These findings contribute to the law and organizations literature by highlighting the importance of enforcement and limits of law for combating discrimination.

“[It's] what you do after the mistake that counts”: Positive employment credentials, criminal record stigma, and potential pathways of mediation

“…Currently, no clear national model exists for how to best incorporate positive credentials into employment decisions. Given intensified critiques of Ban the Box policies that delay criminal record inquiries past the application stage, however—along with recent evidence of noncompliance or a lack of widespread knowledge after policies take effect (Herring & Smith, 2022; Schneider et al., 2021)—presenting positive credentials upfront is an alternative strategy for employers looking to build in such information. In future research, it would be useful to test whether our findings replicate in different settings, such as audit studies, and when credentials are presented in different ways.…”

Damned if you do, damned if you don't: How formerly incarcerated men navigate the labor market with prison credentials*

“…T he prison credential dilemma , however, highlights the potential limitations of these policies—alongside other unintended consequences for Black men (Raphael, 2021)—drawing attention to how applicants may inadvertently reveal their criminal histories via the institutional affiliations of prison credentials. These routine job application and interview questions can work to maintain “the box,” especially absent of policies applicable to private employers and the implementation of accountability structures to prevent employer noncompliance (Office of Human Rights, 2019; Schneider et al., 2021). Allowing courts to decide the type and duration of collateral penalties rather than state legislators as well as incorporating the acquisition of prison credentials into formal guidelines on imposing collateral penalties in the labor market may be a promising solution (Love, 2015).…”

Criminal record stigma, race, and neighborhood inequality

“…Alternatively, housing providers might have been aware of the guidelines but chose not to comply either because of the ambiguous and short‐lived nature of the guidelines (and the unlikelihood of Fair Housing enforcement) or because they fundamentally opposed the nature of such a policy (Brydolf‐Horwitz, 2020). This mismatch between policy and practice calls for more detailed research on housing providers’ compliance, understanding, and knowledge of antidiscrimination policies, akin to work on equal opportunity employment laws or ban‐the‐box laws (e.g., Edelman & Talesh, 2011; Schneider et al., 2022). This research is particularly important in view of the lack of regulatory oversight regarding the sale and usage of criminal histories, reorganization of the landlord profession, and the passage of new laws around expungement and record concealment.…”