Time to Ban “Ban the Box” Once and For All

Date: May 01, 2017

Guest editorial by NFIB/Colorado State Director Tony Gagliardi

It came sailing out of the House side of the Colorado General Assembly propelled by the winds of well-meaning intention. Fortunately, especially for small businesses in the state, House Bill 1305 hit severe turbulence in the Senate and crashed—for now.

Advocates for prohibiting employers from asking a job-seeker up front if he or she has ever been convicted of a crime, popularly called ‘ban the box,’ would be dismayed to hear this, but significant research on the issue finds that it “doesn’t help many ex-offenders, and actually decreases employment for black and Hispanic men who don’t have criminal records.”

That quote comes from the left-of-center Brookings Institution in an article by Jennifer Doleac (“ ‘Ban the Box’ does more harm than good”), who with her colleague, Benjamin Hansen, concluded, “Overall the unintended consequences of ‘ban the box’ are large, and run counter to one of its goals: reducing racial disparities in employment. For this reason, I hope jurisdictions repeal their ‘ban the box’ laws … Advocates could push for policies that would provide more information to employers about ex-offenders’ job-readiness, rather than taking information away.”

Doleac and Hansen are not alone in finding what they did. Amanda Agan, a Princeton University economist, and Sonja Starr, a University of Michigan Law School professor, in their research paper worried that “withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.”

Supportively, that is what even more research has found. Harry Holzer of Georgetown University, Steven Raphael of the University of California Berkeley, and Michael Stoll of the University of California Los Angeles concluded from their collaborative study, “We find that employers who check criminal backgrounds are more likely to hire African American workers, especially men. This effect is stronger among those employers who report an aversion to hiring those with criminal records than among those who do not … These results suggest that, in the absence of criminal background checks, some employers discriminate statistically against black men and/or those with weak employment records.” [Italics added]

According to Wikipedia, “The campaign [to ban the box] began in Hawaii in the late 1990s, and has gained strength in other U.S. states following the 2007–2009 recession. Its advocates say it is necessary because a growing number of Americans have criminal records due to tougher sentencing laws particularly for drug crimes, and are having difficulty finding work because of high unemployment and a rise in background checks that followed the September 11 terror attacks on the United States.”

But from the research cited above, it’s clear that ‘ban the box’ laws, which have gained support from Republicans and Democrats alike and are in place in many corporate hiring policies, are having terribly opposite effects from its supposed purpose. Even another left-of-center think-tank, the Urban Institute, seems to be throwing in the towel on ‘ban the box.’ As Institute researcher Christina Plerhopes Stacy puts it:

“The status quo is clearly not the answer, and there’s no doubt that the intent of ban-the-box legislation is good. However, the policy may be causing increased discrimination against groups that disproportionately have a criminal history. What is needed instead are policies and programs that address problems much farther upstream, where members of minority communities are being funneled into the criminal justice system.”

On May 1, the Senate State Affairs Committee rightfully killed House Bill 1305, which I testified against. I’ve been asked why the National Federation of Independent Business, of which I serve as its Colorado state director, is one of the few business group to oppose ‘ban the box.’

It’s quite simple: In addition, to ‘ban the box’ being demonstrably bad public policy, we also represent the thousands of small-business owners who can’t afford the legal departments and human resource departments which can thoroughly vet every job-applicant.

Oh, and by the way, as the research shows, small businesses are still doing a better job at giving someone a second chance who couldn’t get past the lobby of a huge corporation.



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NFIB/Colorado State Director Tony Gagliardi


This editorial was transmitted to the media throughout Colorado for free use in their publications and on their websites.

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