Ban the Box legislation can be an important tool in remedying Black underemployment by removing employers’ ability to use criminal history as a proxy for discrimination. However, it only attacks a symptom of the problem created by America’s racist history, the insidiousness of which contributes to the devaluation of Black lives and the exclusion of Black men and women from all sectors of the workforce.
History and Ramifications
The myth of Black criminality, invented by proponents of slavery and demonstrably false, is integral in perpetuating the American systems of discriminatory policing, over-incarceration, and general state control of Black bodies. The lie that Black people are inherently criminal has been used to justify all types of government-sponsored terror: from slavery to chain gangs, segregation, redlining, and lynching.
The most painful ramification of this myth is the systematic devaluation of Black lives, allowing for Black children and adults to be killed for such “crimes” as getting a snack, buying a toy, going for a drive, taking public transportation, listening to music, asking for help, praying at church, and using their imagination. It turns a simple truth – that Black lives matter – into something somehow controversial.
Effect on Employment
The most painful ramification of this myth is the systematic devaluation of Black lives, allowing for Black children and adults to be killed for such “crimes” as getting a snack, buying a toy, going for a drive, taking public transportation, listening to music, asking for help, praying at church, and using their imagination. It turns a simple truth – that Black lives matter – into something somehow controversial.
Overincarceration and discriminatory policing have not only removed significant numbers of working-age Black Americans from the labor market, but they have also created a hardened tautology: The more Black people are disproportionately imprisoned, the more the myth of Black criminality is reinforced.
The scientific evidence underlying this phenomenon is laid out in Devah Pager’s “Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration.” Pager found, predictably, that possessing a criminal record significantly lowers the chances of receiving a positive response from an employer for all races. However, Pager also found that Black testers without criminal records were less likely to receive a positive employer response than white testers with criminal records. Further, Black testers in Pager’s study were likely to be asked upfront whether they had a criminal record, while white testers were rarely asked. Indeed, as a 2009 re-entry study in New York City found, the criminal record penalty suffered by white applicants (30 percent) is roughly half the size of the penalty for Blacks with a record (60 percent).
Ban the Box Efforts
Some municipalities have finally begun to address pervasive discrimination against those with arrest and conviction records through legislation like Ban the Box, making it a violation of the law to bar job applicants because of unrelated convictions. These initiatives can disrupt some of the pervasive discrimination that Black job applicants face because of systemic racism in the criminal justice system. They also effectively attack a common proxy used by employers to avoid hiring Black applicants.
However, while initiatives like Ban the Box are necessary tools in combating Black underemployment, it is important to note that laws targeting criminal record discrimination cannot fully address the insidious stigma of the criminality myth that bars Black Americans from jobs even if they have no contact whatsoever with the justice system. That’s because Ban the Box laws attack a symptom of the problem instead of the problem itself. Many employers do not perform systematic background checks, but instead use statistical discrimination to simply assume that Black workers have criminal records.
Educational and Credit History Barriers
More important, even if they have no contact with the criminal justice system, Black people are underemployed at every single level of education, from high school up to Ph.D. level. A recent report by the Economic Policy Institute found that Black Americans with college degrees still lag behind their white counterparts in employment. In fact, Black applicants with some college education have a harder time finding work than whites who haven’t even completed high school. Recent gains have done nothing to lessen the disparity between Black and white job seekers. All of this means that race remains a key factor in employers’ hiring decisions.
Criminal history is not the only way employers use “race-neutral” criteria as a proxy to discriminate against Black job seekers. For example, many employers use credit checks to weed out applicants, which has a disparate impact on Black job seekers, who are disproportionately likely to report poor credit. In another example, some employers discriminate against the unemployed, refusing to hire any applicant who does not currently have a job. Because high unemployment and economic downturns negatively affect Black people more than white people, refusing to hire the unemployed has a disparate impact on Black job seekers.
These two examples underscore the importance of disparate impact litigation: without overt animus, it’s difficult to prove that an employer is looking to avoid hiring Black applicants. A disparate impact lawsuit provides an avenue to proving discrimination regardless of animus or intent – an important and necessary tool because most bias is either systemic or unconscious.
In the midst of this country’s current long-overdue reflection on the pervasiveness of racial bias, the collateral effects of the devaluation of Black lives must be front and center in any discussion of reform. What is needed to remedy Black underemployment is an all-hands-on-deck, holistic approach that acknowledges the omnipresent role that systemic racism continues to play.
