ERASING THE MARK OF CAIN: AN EMPIRICAL ANALYSIS OF THE EFFECT OF BAN-THE-BOX LEGISLATION ON THE EMPLOYMENT OUTCOMES OF PEOPLE OF COLOR WITH CRIMINAL RECORDS.

• Author: Gubernick, Lucy

"Criminals, it turns out, are the one social group in America we have permission to hate. " --Michelle Alexander (1) TABLE OF CONTENTS Introduction 1154 I. Why Are Governments Banning the Box? 1157 A. Criminal Records in the Labor Market 1157 II. The Negative Credential and Race 1164 A. The Legal History That Gave Rise to the Need for States to Ban-the-Box 1164 1. History of Federal Court Treatment of Disparate Impact Challenges to Employers' Criminal Record Policies 1164 2. Legally-Mandated Discrimination 1175 3. The Rise of the Criminal Background Check Industry 1178 4. Enter Ban-the-Box Laws 1183 B. Reconsidering and Repositioning Ban-the-Box in Light of Sociological Studies and Their Political-Historical Context 1190 1. Sociological Study on Race, Criminality, and Employment 1190 2. Using Critical Race Theory and Critical Legal Theory to Consider Ban-the-Box Law 1195 III. The Failures of Existing Data on Ban-the-Box 1200 A. Ban-the-Box Data from Minneapolis, Durham, San Francisco, and New York City 1200 1. Minneapolis, MN 1201 2. Durham City and County, NC 1202 3. San Francisco, CA 1203 4. New York, NY 1206 5. Summary 1208 B. A Proposal 1209 Conclusion 1211 Appendix A 1212 Appendix B 1213 Appendix C 1214 Appendix D 1214 Appendix E 1215 Appendix F 1215 INTRODUCTION

In May of 2015, Judge John Gleeson of the Eastern District of New York expunged the conviction of Jane Doe, (2) a low-income mother of four, who had been sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme. (3) At the time of her conviction Doe was working as a home health aide. Her criminal record had since made it impossible to find new work in her field. (4) In his decision, Judge Gleeson wrote, "I sentenced her to five years of probation supervision, not to a lifetime of unemployment." (5) In order to make the punishment fit the crime, the judge felt it necessary to erase the record of the crime ever happening.

There are over seventy million people in the U.S. with a criminal record on file. (6) Prison reformers have dubbed the criminal record "the mark of Cain" because of its indelible nature and its role as a justification for perpetual punishment--namely, exclusion from the economic and social spheres of American life. (7) This punishment is exacerbated by racial prejudice and the real and perceived connections between race and criminal justice involvement in this country. (8) Jane Doe is black and, in the decision, Judge Gleeson acknowledged her race as "even more of an impediment to her employment prospects than her conviction." (9) In the U.S. job market, race has effectively become a proxy for criminality. (10)

Sociologists have begun to draw attention to the racial disparities in both the population "marked" by a criminal record and the civic penalties inflicted on that population upon reentry into society. (11) Studies show that the criminal justice system acts as a manufacturer of inequality in the labor market. (12) The system disproportionately convicts and incarcerates people of color and then tracks them for further disparate treatment by potential employers, frequently driving these individuals to abandon the prospect of a legal job altogether. (13) This authorized cycle of discrimination has, in turn, engendered and solidified social biases about what criminality looks like. (14) Today, the unemployment rate of people with criminal records generally is dangerously high, (15) but specific attention needs to be paid to the unmeasured group of unemployed people of color with criminal records.

As the successful reintegration of the ex-offender population becomes an increasingly urgent policy concern, more and more states, cities, and counties are implementing "ban-the-box" hiring laws to improve the employment outcomes of people with criminal records. (16) Ban-the-box laws aim to provide job candidates with the opportunity to put forward their qualifications initially without the stigma of a criminal record by prohibiting the conviction history question on preliminary job application materials and to delay the moment at which an employer can perform a criminal background check. (17) Ban-the-box legislation is important because it addresses the issue of discrimination based on criminal background. (18) However, given the concerns over the specific and intensified discrimination faced by unemployed people of color with criminal records, more targeted legislation is needed. Otherwise, the question of how effective ban-the-box legislation is in terms of benefitting minority groups who are most disenfranchised by the criminal justice system and its collateral consequences remains. (19) This Note argues that there have been insufficient data collection efforts to establish and ensure that ban-the-box legislation will specifically improve the employment outcomes of people of color with criminal records. Further, the laws should be written with the explicit purpose of ameliorating the collateral consequences of conviction for minorities in order to distinguish the future of ban-the-box legislation from past failures in antidiscrimination jurisprudence. (20)

Part I of this Note explains how criminal records currently operate to exclude people--particularly people of color--from the labor market. Part II catalogs the history of laws aimed to remedy the unequal impact of criminal record discrimination on people of color and the context that led to the ban-the-box movement. Part II also outlines competing sociological theories about whether or not ban-the-box laws will increase employment outcomes for people of color with criminal records, framed by a critical race theory analysis of the civil rights law tradition. Part III presents the limited existing data about the effects of ban-the-box legislation and suggests a more robust legislative model that will guide and enforce future, useful data collection.

1. WHY ARE GOVERNMENTS BANNING THE BOX?

   1. Criminal Records in the Labor Market

   Over the past few decades there has been a deliberate "redrawing" of American social inequality, influenced and characterized by the dramatic rise in the prison and jail populations. (21) Sociologists Bruce Western and Becky Pettit explain that, although the increase in the penal confinement rate is in itself a significant and sinister social phenomenon, "the scale of punishment today gains its social force from its unequal distribution." (22) People of color--particularly young black men--make up a disproportionate share of the Americans behind bars. (23) Black people constitute just thirteen percent of the overall population but forty percent of the prison population. (24) Latinos constitute sixteen percent of the American population, relative to nineteen percent of the prison population. (25) Alarmingly, the Justice Department has estimated that one third of black men and nearly a fifth of Latino men born in 2001 will go to prison in their lifetime. (26) Prejudiced criminal justice policies and racial profiling, not disproportionate minority crime rates, account for the high numbers of blacks and Latinos locked up. (27) Only very recently have researchers begun to take stock of the impact of the intense racial disparities in the incarcerated population on the myriad collateral consequences that population suffers upon release. (28) According to Sociologist Devah Pager, who implemented an experiment in 2003 to test the role of criminal records in hiring discrimination, "the connections are in thinking about the criminal justice system as an increasingly important mechanism for generating racial inequality in the labor market." (29) Pager's experiment highlighted the correlation between the disparate treatment of race by the criminal justice system and the later disparate treatment of race by employers evaluating job applicants with records. (30)

   Pager refers to a person's criminal record as a "negative credential" because of the extremely high barrier it poses to employment. (31) Her study used an experimental audit approach based on "matched pairs" of specially trained black and white men who applied for hundreds of entry-level, low-wage jobs in Milwaukee in the summer of 2001. (32) The applicants were randomly assigned resumes that showed identical work experience and education, but one of the two indicated recent employment in prison and listed a parole officer as a reference. (33) Pager recorded whether employers called back to offer a job or schedule a second-round interview. The study's aim was to determine the extent to which a criminal record (in the absence of other disqualifying characteristics) serves as an obstacle to employment. Out of the pool of subjects, thirty-four percent of white applicants without a criminal record were given a callback compared to seventeen percent of white applicants with a criminal record. (34) That is, having a criminal record reduced a white job applicant's success by half. (35) Even more alarming, was that the seventeen percent of white applicants with criminal records given callbacks was still higher than the fourteen percent of black applicants without criminal records who were given callbacks. (36) And only a meager five percent of black applicants with criminal records were given callbacks. (37) Therefore, the study revealed even greater racial discrimination in hiring practices than conviction-based discrimination. Responding to Pager's findings, Ta-Nehisi Coates wrote: "Effectively, the job market in America regards black men who have never been criminals as though they were." (38) This pervasive prejudice among hiring authorities is tied up in stereotypes of criminality that assume (39)--and ultimately, contribute to (40)--links between race and ex-offender status.

   In most jurisdictions the social stigma associated with a criminal record is compounded by legally mandated discrimination based on that criminal record. (41) People with...