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Ban the Box Legislation Aims at Ending Employment Discrimination Against Convicted Criminals

By Leeds Brown Law | August 23, 2016

“Ban the Box” legislation pushes to lessen employment discrimination that occurs against convicted criminals. According to National Employment Law Project, there are approximately 70 million Americans with some criminal record. Nearly 700,000 people are released from incarceration each year.

Job opportunities are crucial to everyone. Employment provides much-needed stability and financial opportunity for every member of society and is especially important to someone returning to the community after spending time in jail. According to a 2015 New York Times/CBS News/Kaiser Family Foundation survey, men with criminal records accounted for 34 percent of unemployed prime working age men.

According to National Employment Law Project (NELP), studies show that if discrimination is going to take place in hiring, it is most likely to take place in the initial interaction, such as submission of the job application. Studies further show that if a prospective employee indicates a criminal conviction on an application, the percentage of callbacks is very low.

Banning the box policies aim to give convicted criminals a better chance of finding employment because there is no immediate disclosure of a conviction. The hope, which is allegedly supported by studies, is that as the hiring process continues, the prospective employer knows more about the applicant, the nature of the crime and its circumstances and is more likely to give him or her a fair chance. Banning the box gives applicants a chance of getting in the door. Employers can still run background checks and ask questions later in the process. The legislation simply provides an opportunity for convicted criminals to receive initial interviews and the chance to prove themselves.

How Does Banning the Box Affect Race Discrimination?

One of the factors behind the push for ban the box policies has been that if employers are unwilling to hire applicants with criminal records and a disproportionate number of African-American males have criminal records, the requirement to disclose that information on a job application contributes to the high level of unemployment among black males. Thus, ban the box legislation would increase job opportunities for African-American men.

According to a report in The Michigan Daily, Sonja Starr a law professor and Amanda Agan, an economist conducted a study focusing on this racial component of ban the box legislation and concluded that ban the box legislation increased racial discrimination against black men.

The study suggests that when there is no indication of criminal conviction status at all, prospective employers used perceived race of the applicant to make a determination about the criminal conviction. There was a greater assumption that black applicants had criminal convictions, and so employers rejected even more black applicants at this initial stage. “Before Ban the Box, White male applicants had 7 percent more callbacks than Black applicants. After Ban the Box, this gap increased to 45 percent.” According to this particular study, banning the box does help convicted criminals get past the first step but not if they are African-Americans. Not disclosing their convictions seems to be a greater obstacle to employment than disclosing does.

Although making such race-based assumptions is unlawful, it is difficult to prove race discrimination in the job application stage. The study does not go so far as to offer any real solution but suggests that removal of all information that can be used to intimate the race of an applicant may be the answer to race discrimination in hiring.

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New York City is one of the hundreds of cities across the country that currently has ban the box legislation in effect. Of course, New York, including Long Island, also has some of the most comprehensive and protective laws shielding employees from unlawful race discrimination. These local laws support and in some instances increase the protections that exist under Title VII of Civil Rights Act and other federal antidiscrimination statutes.

If you think you are experiencing racial discrimination, contact the Long Island race discrimination attorneys at Leeds Brown. We have been protecting the rights of Long Island employees for decades and can help determine if you have a cause of action for race discrimination. Call Leeds Brown 24/7 at 1-800-585-4658.

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