BAN THE BLACK BOX: CRIMINAL BACKGROUND SCREENING AND THE INFORMATION-WITHHOLDING PROBLEM.

• Author: Stocker, Jennifer

Introduction

Beverly Harrison worked for the city of Dallas, Texas, for twenty-eight years before she retired to devote more time to her grandchildren and her church. (1) In 2013, Harrison took a job as a crossing guard for Dallas County Schools to supplement her retirement income. (2) Eight days into her new role, Harrison was terminated. (3) The cause? A nearly forty-year-old assault conviction on her background check, stemming from an altercation when Harrison was just eighteen. (4) Although Harrison's criminal record had not barred her from a long career in public service or several years as a home health aide, she was dismissed from her new role without discussion. (5)

With an increasing number of employers performing background checks on potential employees, (6) stories like Harrison's are all too common. When a candidate fills out a job application, often one of the questions she will encounter is, "Have you ever been convicted of a crime?" (7) A "yes" may spell the end of her candidacy. (8) Even when a candidate makes it through the selection process, like Harrison, she may find that a criminal record stands in the way of continued employment.

An inability to obtain employment is one of the collateral consequences that affects an individual's ability to reintegrate into society following criminal conviction. (9) As in Harrison's case, the barrier to employment can persist for years or even decades. This is a problem for a large and still-growing segment of the population, (10) as a result of the "tough-on-crime" policies prevalent in the 1980s and 1990s. (11) These policies have disproportionately affected racial minorities--particularly black and Hispanic men--exacerbating the challenges they already face in obtaining employment. (12) Legislators have responded to these interlinking problems with laws to remove "the box," the criminal-record question on job application forms. (13) The fundamental theory of "Ban the Box" (BTB) laws is that if a candidate with a criminal record (14) is considered on his own merits before his criminal history is revealed, the employer will be more willing to hear him explain the circumstances of the offense and provide evidence of rehabilitation. (15)

BTB laws exist within a larger framework of employment laws designed to inhibit the flow of sensitive information that employers receive about potential employees. (16) Like criminal records, some information that employers receive during the candidate selection process may disproportionately disadvantage minorities who already face obstacles to employment. As more of these types of laws are enacted, studies indicate that they may have the opposite of the intended effect. (17) Recent research indicates that BTB laws may worsen employment outcomes for young black and Hispanic men. (18) These studies conclude that, in the absence of concrete information, employers assume that minority candidates are more likely to have criminal records and decline to hire them. (19) These findings have generated much discussion about the value of BTB laws. (20) Reports suggest that they may hamper further BTB legislation. (21) Some legal commentators have responded with calls to repeal BTB laws and pursue alternative means of redressing criminal-record discrimination. (22)

This Note examines the implications of these recent studies in the context of BTB's goals. Part I traces the development of the BTB movement and surveys current political responses to the call to delay criminal-record inquiries. Part II examines recent research suggesting that BTB laws lead to an increase in race discrimination in hiring. Part III contextualizes this research within a broader theme of negative effects produced by withholding-key information during the candidate selection process. This information-withholding problem surfaces on both sides, with employers and candidates alike relying on guesswork to find the right fit. Part IV recommends breaking through the mystification from the candidate's side. By increasing the information available to the candidate, candidates can make more informed decisions about which jobs to seek, and employers will see the benefit of a stronger candidate pool.

1. THE HISTORY OF BAN-THE-BOX

   1. Development of the Ban-the-Box Movement

      BTB laws are a product of efforts to address the aftermath of increased rates of criminal convictions in the past several decades. (23) "Tough-on-crime" policies enacted since the 1970s have caused arrest and incarceration rates to soar. (24) Approximately one and a half million individuals are currently in state or federal prison, a fivefold increase since 1980. (25) As these policies have fallen out of favor in recent years, incarceration rates have started to decline, (26) but the criminal records remain. A recent study estimates that nineteen million U.S. citizens have been convicted of a felony. (27) This constitutes eight percent of the adult population, up from three percent in 1980. (28)

      The BTB movement grew out of a grassroots campaign, All of Us or None, by organizers at Legal Services for Prisoners with Children. (29) The campaign's goal has been to fight the barriers, such as housing discrimination and voting restrictions, that confront individuals attempting to reintegrate into society following criminal conviction. (30) The "collateral consequences" of conviction persist long after the individual has supposedly paid his debt to society. (31) The result is an aggravation of the conditions that breed crime, such as poverty and societal alienation. (32) As collateral consequences accumulate, the risk of recidivism increases. (33)

      One of the strongest and most consistent predictors of recidivism is the inability to obtain long-term employment. (34) The increased availability and use of criminal background checks by employers has exacerbated the difficulties of finding employment for individuals with criminal records. (35) Recognizing unemployment as the most damaging and persistent barrier to reentry, All of Us or None focused its earliest efforts on the first obstacle that individuals with criminal records encounter when seeking a job--the "box" on an application form that asks whether the applicant has ever been convicted of a crime. (36) When an applicant checks "yes," it often means the end of the applicant's candidacy. (37) However, if the question is postponed until later in the process, applicants with criminal records can get a "foot in the door." (38) As the theory goes, once an employer has invested a certain amount of time in recruiting an applicant, it will be more willing to hear the applicant explain the circumstances of the conviction and demonstrate rehabilitation. (39) The employer may thus be more willing to discount the criminal record and hire the applicant. (40)

      The goals of BTB extend beyond improving the lives of individuals with criminal records and decreasing the risk of recidivism. BTB laws also seek to combat race discrimination. (41) The policy changes that caused rising incarceration rates over the last forty years have affected minorities at much higher rates than whites. (42) Drug law enforcement efforts, in particular, have disproportionately targeted black communities. (43) Disproportionate policing of black and Hispanic individuals has driven up conviction rates among this group. (44) Black men are particularly overrepresented in the criminal justice system--approximately one in three adult black men in the United States has a felony conviction. (45) Young black men are particularly likely to have criminal convictions, and they often experience the collateral consequences of conviction most acutely, exacerbating existing challenges within their communities, including poverty and unemployment. (46)

   2. Current Legislation

      In 1998, Hawaii became the first state to ban inquiries into criminal records on applications by public and private employers. (47) Since then, twenty other states have enacted legislation applying to public employers. (48) These laws vary in scope, with some applying only to state employers (49) and others applying to city and county employers as well. (50) In the absence of legislative action, governors in several states have issued orders banning the criminal-record question from applications for state employment. (51)

      BTB laws vary in terms of when during the candidate selection process employers can ask about criminal history. Some allow questions after an initial screening for minimum qualifications (52) or during an interview, (53) while others allow questions only upon a "conditional offer of employment." (54) Many states authorize exceptions for positions in law enforcement or corrections, (55) positions working with vulnerable populations (such as children or individuals with mental or physical disabilities), (56) or positions with screening requirements mandated by other laws or regulations. (57) No state wholly prohibits criminal screening for employment purposes. (58)

      Ten states currently have legislation applying to private employers. (59) Most recently, California expanded its BTB law to include private employers with five or more employees. (60) Other jurisdictions, however, have resisted extending BTB to private employers. (61) Tennessee and Indiana have passed laws limiting the ability of local governments to enact BTB laws against private employers, even as they took action to ban criminal-record inquiries in state employment. (62)

   3. Giving Offenders a "Fair Chance"

      In addition to BTB, some jurisdictions have enacted laws that require employers to engage in individualized assessments before making an adverse decision based on criminal records. (63) This type of law arose in the context of an employment discrimination case. (64) In Green v. Missouri Pacific Railroad Co., (65) a rejected applicant brought a discrimination claim under Title VII of the Civil Rights Act (66) against a potential employer that refused...