John Donvan

This is Open to Debate. I’m John Donvan. Hi everybody. Today’s debate concerns something that you have probably come across in your personal life. In fact, every time you’ve ever applied for a job, step one in that process is almost always filling out the job application online or on paper. And you have a bunch of blanks to fill in, and a bunch of boxes to check off. You know, name, education, past experience, job skills, et cetera, et cetera. Well, often there’s a box you have to check that asks whether you have ever been convicted of a crime. For a variety of reasons, employers wanna know upfront whether you have a criminal record or not, before they learn very much else about you.

But what is the likely impact of checking yes in that box for the approximately 70 million Americans who do have a criminal record? Is it fair to be asking that question right at the start? Well, there’s a movement going on for Fair Chance Hiring policies known informally as ban the box-

Audience

ban the box, ban the box.

John Donvan

… to get rid of that checkbox. And there are now laws on the books in 37 states banning the box in public sector jobs.

Speaker 3

There being 82 ayes and 47 nays, the Bill has passed, and it’s title agreed to.

John Donvan

And in many other cities as well.

Speaker 4

The Portland City Council is taking public comment on the mayor’s proposal to ban the box.

John Donvan

With over a dozen states also banning the box for private employers.

Audience

(laughs)

Speaker 5

It’s official. Colorado has banned the box. Employers will no longer be able to ask if you’ve been convicted of a crime on a job application.

John Donvan

And this is not a partisan issue. Republicans and Democrats have actually teamed up on this one, including in Congress, where a bipartisan congressional effort led to the passage of a ban on the box for all federal employees, and it was signed into law by President Trump. But there’s been some criticism of these policies also with some arguing that delaying background checks, not letting employers ask a question about criminal history right up front has unforeseen negative consequences and may in fact be hurting some of the people it’s meant to help. Has this legislation been adopted to hastily before we can take stock of whether it really works as intended? Well, for us, the disagreements surrounding this sounds like the makings of a debate. So here during National Second Chance month, we’re gonna go right at it with this question, ban the box, should we banish the criminal history checkbox from job applications? Answering yes to that question saying that we should ban the box, we have Beth Avery, senior staff attorney at the National Employment Law Project. Beth, welcome to Open to Debate.

Beth Avery

Oh, so happy to be with you.

John Donvan

And answering no, saying that we should not ban the box, Jennifer Doleac, executive vice president of Criminal Justice at Arnold Ventures. Welcome to you also, Jennifer, to Open to Debate.

Jennifer Doleac

Hi, thanks for having me.

John Donvan

Um, before we get started, I just want to get a little bit of a sense of what motivates each of you to be involved in this issue at all. So I’ll, I’ll go to you first, Beth. What, what inspired you to start getting involved with this question at all?

Beth Avery

Yeah, well, I guess, you know, my serious interest in employment as a big factor to our identity stems from my father struggling with cancer when I was a teenager. He was unable to work, and it undercut his whole identity as a breadwinner. Um, then fast-forward to my first legal internship, I had a legal aid client. He was an older Black man, a veteran. We were assisting him with something else. Um, but he kept talking about how depressed it made him to not be able to get a job to support his family. And it became clear that his, you know, his year old co- years old conviction record was what was preventing him from getting a job. So when I heard about ban the box, it just made sense. laughs)

John Donvan

Yeah, very, very personal for you. Um, I wanna take the same question to you, Jennifer. What inspired you to get started in on the, getting involved in talking about and thinking about and writing about this issue?

Jennifer Doleac

Yeah. Well, I’m an academic economist by training, um, and I’ve spent my career doing research that measures the impacts of policies and programs related to crime and the criminal justice system. Um, and economists focus on distinguishing correlation from causation on a wide range of topics, it’s not just money. Um, and we also worry more than most people do about unintended consequences. Uh, so what drew me to studying ban the box was the issue of helping people with criminal records reintegrate into their communities and find jobs, um, similar to Beth. Um, but I was also really interested in the potential for unintended consequences, uh, which I know we’ll get into more later.

John Donvan

All right. Well, very interesting to hear what, how each of you care about this and why you care about it. And now it’s time to get to our first round and our first round, our opening statements by each of you in turn, when, which you take a few minutes to explain why you’re arguing yes or no and answer to the question of whether we should banish the criminal history checkbox. Uh, Beth, you’re up first. You’re answering yes, that we should banish, we should ban the box. Please tell us why.

Beth Avery

Of course. Well, let me begin with why this issue ban the box and employment for people with records is so important. It starts with the fact that the US has the highest incarceration rate of any country in the world, and as a result, nearly one in three US adults have an arrest or conviction record that can show up on unemployment background check. And the pain from this is not equally distributed. Black, Latino, Indigenous people are much more likely to have a record because our legal system criminalizes people of color. So after serving some of the longest sentences in the world, people are sent back to their communities and expected to rebuild their lives.

Now, no one is supposed to be sentenced to a lifetime of unemployment and poverty, but people with records are routinely denied opportunities to work, and that means a lifelong reduction in employment in wages, and a real inability to support their families and communities. By the way, nearly half of children have at least one parent with a record. So why are so many people with records denied work? Many employers refuse to hire them, but the truth is that background checks don’t help most employers make better hiring decisions. Instead, it typically leads to rejections based on stereotypes about people with records. But in contrast to those stereotypes, studies show that workers with records are reliable, solid employees as they’re, you know, they’re trying to get economic stability for themselves.

There’s no evidence that people with records are more likely to engage in workplace misconduct than other employees. And vague fears of recidivism tend not to be good reasons to reject them. You know, the likelihood of rearrest drops steeply and quickly after release and after just a few years, it’s the same as anybody else. Not to mention having a job is one thing that makes it much less likely that someone will be reincarcerated. So that’s where ban the box, also known as Fair Chance Hiring comes in to interrupt the stigma and encourage employers to view workers as more than just their record. You know, in the status quo, people with records are rejected at step one, submission of the job application.

Studies show that when employers learn of a conviction record upfront, they’re much less likely to select the applicant, especially if that applicant is Black. Add algorithms and AI to the, to the equation, and people might not even have a chance to enter their qualifications, let alone have a, a human look at them before they’re rejected based on their record. ban the box removes the questions from applications and delays background checks. Now, while I don’t have time to preempt the counter arguments that I know are coming from Jennifer, I’ll end with this. ban the box, Fair Chance Hiring, it’s a first important step toward addressing the employment crisis facing people with records. Does it solve that massive problem? No single policy change can do that. ban the box doesn’t guarantee a job, but it allows someone to get their foot in the door.

You know, in some Fair Chance policies go a bit further. The best policy is delay it until after a job offer. And the best policies also require an employer to actually consider if a past conviction is at all job-related. So, you know, that can help prevent employers from rescinding job offers for bogus reasons. So finally, while ban the box may be a first step, it’s a necessary one. If we don’t ban the box, if we continue to allow people with records to be rejected at step one based on stigma and stereotypes, those stereotypes and that stigma are gonna persist unchecked, and they’re gonna continue to control hiring decisions. So I’ll end with that.

John Donvan

Thank you very much, Beth. Um, Jennifer, you disagree with that. You are answering no to the question, should we banish the criminal history checkbox from job applications. Here’s your chance to tell us why.

Jennifer Doleac

Yeah. Well, let me reiterate the problem that we’re all here trying to solve so we can keep our eye on that ball. The problem that motivates ban the box policies is that people with criminal records are employed at extremely low rates. And when people don’t have a job, they may be more likely to commit crime. So, so there’s likely a social benefit to increasing employment for this group beyond the benefit to the individual. We all have an interest in helping people with criminal records find jobs because it makes our communities safer. One reality that makes this difficult, though, is that on average, people with criminal records face many challenges, uh, relative to those without records. This is probably one reason they wound up with a record in the first place.

These challenges include higher rates of poverty, higher rates of substance use, and untreated mental illness, lower educational attainment, limited past work experience, and emotional trauma. A recent conviction also means a high likelihood of rearrest, given a minefield of parole and probation requirements and high recidivism rates. This could unexpectedly take someone off the job, even if they’re otherwise a model employee. We now have clear evidence that employers discriminate against job applicants who have a criminal record, even when other qualifications, such as schooling and employment histories are the same. So the question is, what do we do about this? How can we help people with criminal records find stable employment? I wanna highlight that there are many possible approaches, uh, to the, to solve this problem, and I hope we come back to that.

One approach, as we’re discussing, that became popular over the past decade or two with ban the box. ban the box policies try to tackle the employer discrimination problem I just mentioned. When someone checks the box on a job application saying they’ve been convicted of a crime, many employers will simply discard their application even if they otherwise seem qualified for the job. This seems really unfair to people who’ve served their time and are trying to turn their lives around. Many of those people would make great employees but can’t get their foot in the door to make the case. ban the box tries to address this unfairness by removing information that we wish employers did not care about.

We wish they ignored the criminal record and gave all qualified applicants a chance. In an effort to force this, ban the box prohibits employers from asking about an applicant’s record until late in the process. Unfortunately, this policy cannot actually force employers not to care. Employers still want to know if an applicant has a criminal record, but now they can’t ask upfront. This puts many in a situation where they have a strong incentive to guess which applicants have a record. The result is that ban the box increases discrimination against groups, more likely to have a recent conviction that might worry an employer.

In the United States, there are large racial disparities in criminal justice involvement, and characteristics like youth and low education are also correlated with criminal activity. This means that employers might use race, age, and education to guess who has a recent conviction and avoid interviewing people from those groups. Research has now confirmed that ban the box has reduced employment for young Black men with limited education. In other words, ban the box has broadened discrimination rather than reducing it. Perhaps more surprising, research has also shown little to no increase in employment for people with criminal records, the people we’re trying to help in the first place.

When employers finally do check someone’s criminal record before making an official job offer, they still reject those applicants who have a record. Clearly, there’s something about that record that worries them, and ban the box does nothing to change this. So in my view, ban the box policies should be abandoned. They do not work, and are making other problems worse. We should focus our time and energy on other policy options instead, including finding ways to directly address the concerns of employers. It is across many policy issues, dangerous and unproductive to become wed to policies before we know if they work for the reason we see now. People become attached to the passage and implementation of ban the box policies without having the results to show for it. I think it’s time to put our egos aside and the politics aside and focus on helping the people we set out to help.

John Donvan

Thank you, Jennifer. Thanks to both of you. So now we know where you stand on this question and why. We’re gonna take a quick break, and when we come back, we’ll go deeper into the issue which we’re discussing. We’re putting it this way, ban the box, should we banish the criminal history check box from job applications? I’m John Donvan, and this is Open to Debate, more when we return.

Welcome back to Open to Debate. I’m your moderator, John Donvan. We’re taking on this question, ban the box, should we banish the criminal history check box from job applications? We’ve heard opening statements from our two debaters, Beth Avery, who’s the senior staff attorney at the National Employment Law Project, and Jennifer Doleac, executive vice president of Criminal Justice at Arnold Ventures. I just want to tell you what I think I heard each of you saying in your opening in a certain very profoundly important ways you share a lot of common ground. You both really believe that the best way back for somebody who has criminal record is through employment, in the absence of employment, exacerbates their situations to the detriment of their prospects and also hurt society more broadly. You agree on that, but what you are disagreeing on primarily is whether this technique of banning the box is just and is effective.

We’re hearing from you, uh, Beth, that you’re saying that just right upfront, um, having that question immediately just strikes people from consideration, and that that’s having a, a terrible, terrible impact. What we’re hearing from Jennifer that in the absence of having that particular piece of information, that employers guess whether, uh, a potential employee has a criminal record, and that way of guessing very often falls back on racial stereotypes and other kinds of stereotypes. Uh, and that also, ultimately down the road, the criminal record, once it’s exposed even after, where neither of you are saying that there should be no criminal background checks. You’re talking about at this first stop, uh, we’re debating whether there should be a check or not, but once a- an employer makes that, has that investigation, he or she’s gonna strike that person from consideration anyway.

So you’re saying the ban the box doesn’t really solve the problem in the long term. So what I think I heard each of you say is kind of contradictory, empirical evidence of whether or, or not we know whether the ban the box in the places where it’s being tried, and it, it is a movement, it’s now in effect in 37 states and 150 localities. Beth, do, do we know, is, is there a disagreement about the empirical evidence about whether this is improving the job prospects of people who have criminal records or not?

Beth Avery

Fair Chance policies help workers with records get their foot in the door, and there is evidence out there that it’s working. You know, much of this data is collected on government hiring after public sector ban the box policies were adopted. The city and county of San Francisco, they now reject something like 0.7, less than 1% of candidates rejected are based on their record. And some of those are rejected because of statutory bars. The District of Columbia, after they in- in- instituted their policy, they saw 33% more people with records hired. Durham County, North Carolina, after it adopted its policy, workers with records hired tripled. You know, and there… In addition to the, this evidence, there’s also some academic studies.

You know, one looked at data from various jurisdictions and determined that young workers with pas- past conviction records were more frequently hired into government jobs after those governments passed ban the box policies. And at least two others looked at employment rates in high crime areas and, you know, using that as a proxy for people with records, and they found improved employment rates after being in the box. So yes, there’s evidence that they’re working.

John Donvan

And, Jennifer, your response to that? And, and you are doing direct research on this question.

Jennifer Doleac

This is a question I can nerd out about for, for much longer than we have-

John Donvan

(laughs)

Jennifer Doleac

… so. (laughs) Um, so, so I know most of the studies that Beths are referring to, um, uh, and so the, the studies by that, that focus on individual jurisdictions where we’re looking at what happens ban the box policy goes into effect? What happens to hiring? Um, that is, uh, basically just a pre-post comparison. Um, one of the big challenges there is we don’t know what would’ve happened without that policy. And often, a lot of those policies passed, um, as the job market was, was speed was, um, uh, was picking up and, um, and it was easier for everyone to get a job. And so, we could see that hiring of probably all groups would’ve increased after that ban the box policy increased. Um, but the researchers were just looking at people with criminal records.

So what we really need in studies like that is a comparison group. We need some idea of what would’ve happened absent the policy change. Um, and so that’s where these other studies come in, where it… We, um, can use the, the gradual rollout of ban the box policies across different states and ju- jurisdictions to, as, as basically a natural experiment to compare employment trends in those places with employment trends in places that didn’t adopt ban the box at the same time and see what happens to employment. Now, one challenge in studying this is that most of our big data sets, uh, that, that economists typically use to study employment don’t ask about a criminal record. (laughs)

[NEW_PARAGRAPH]And so it is, it is a, it has been a tricky thing to study. Um, the, the studies with the largest samples here where we can be the most conclusive about the evidence, um, really only are able to look by race. And so, so I have researched looking at what happened to the employment of, of young Black men with relatively little education after ban the box went into effect, and found that on average, ban the box reduced employment for that group. That suggests that the unintended consequences there dramatically outweighed the, um, the benefits.

John Donvan

What you’re both talking about are studies that look at the real world, that look at data sets from actual hiring. But had there not been studies as well where applications for made up people were submitted to employers, and some of them had criminal records, and some of them didn’t, which would, I think, would allow you to control for more variables. What… Can you tell us each of you about those studies and what they reveal about the position you’re taking? Jennifer, why don’t you take that first?

Jennifer Doleac

Yeah, so there is what’s called an audit study, where researchers, um, uh, applied to real jobs with real job applications, but they were fictitious app- applicants, which allowed them to randomly assign different characteristics across the app, the job applications, um, and isolate that effect of the criminal record. Um, and what they found was that before a ban the box, uh, people with criminal records were called back at much lower rates than people without records. But that otherwise people across different racial groups were compare, were were called back at pretty equal rates. After ban the box, what they found was that, um, the racial disparity widened dramatically. So callback rates for, for white applicants went way up. Employers assumed that they did not have a record. Um, but, uh, but employers called back Black applicants at a lower rate, um, assuming that they, they probably did have a record.

John Donvan

Beth, what- what’s your response to all of that?

Beth Avery

The evidence out there that ban the box is having an unintended consequence for people of color, i- it is unproven, and it’s unconvincing. Um, so I would, I would say it’s far from confirmed as Jennifer called it. Um, so with regard to this audit testing, uh, this match pair testing study, you know, they were looking at callbacks, not employment. So that’s one thing to keep in mind. And also the… I think I find the timing to be important here. Ban the box, uh, is a policy that, you know, it’s not like flipping a switch. It doesn’t happen overnight. Um, people don’t even know about the policy overnight. Things, things don’t happen like that. And that paper was looking at, looked as, as soon as one month and at, and at most, looked five months after the change happened.

So I just think that there needs to be more evidence that statistical discrimination is happening before we’re going to abandon a policy that people with records are calling for, that there’s been a movement behind, that communities of color are saying that they want, and they need, I think we… Before we discount what people affected want themselves, we need to really be sure that that this is actually happening, and I’m not.

Jennifer Doleac

I just, I really strongly disagree about, about the extent of the evidence here. I mean, there’s, there’re the studies we’ve talked about, there are a whole bunch of other studies that have been able to link administrative data on criminal records with employment records, looking at the effects on ban the box for people with criminal records, and they have found zero impact on people with criminal records looking at earnings, looking at whether they work at all, whether they work, you know, more than 20 hours a week, basically like any kind of outcome you could possibly look for looking for, for these employment, um, impacts on people with, with criminal records, who I will say, like, upfront, going into this study, this line of work, I really expected ban the box to help some people.

And the question was whether the unintended consequences would cancel out that benefit. What we’re finding is that basically there is no benefit for people with criminal records. I think a much stronger argument for ban the box, frankly, is thinking about, um, you know, what are the… Is, is more of just a normative and moral case for whether we think it’s right to, to ask people about criminal records. But I really don’t think that the evidence here, um, is, is dispute.

John Donvan

So where, where, where would you be on the normative and moral part of this-

Jennifer Doleac

I mean, I personally-

John Donvan

… Jennifer?

Jennifer Doleac

… care a lot about what the evidence says and what the impact of policies are. Um, and certainly, as an economist, that’s generally my stance.

John Donvan

Yeah.

Jennifer Doleac

Um-

John Donvan

Yeah, you’re taking-

Jennifer Doleac

… I’m more of a-

John Donvan

… you’re taking the economist position on this very clearly.

Jennifer Doleac

(laughs) I am, I am. And unfortunately-

John Donvan

Yeah.

Jennifer Doleac

… that is just the way my brain works. Um, yeah, I mean, I think I’m much more of a consequentialist, um, in terms of what I think, what I think we should do, uh, you know, what’s the impact in the real world. But I do recognize there is this other side, um, and, and, you know, can agree to disagree on that.

Beth Avery

I- I’d just like to reiterate, ban the box, you know, is still like a moral imperative. Even if we’re accepting statistical discrimination, which I’m not accepting, there would still be strong policy reasons to ban the box. It remains patently unfair to screen out people at step one. And I don’t see how we move employers past the bias, how we interrupt the stereotypes, the unfair stereotypes if we allow employers to continue to freely and unfairly screen out everyone with a record upfront. That’s gonna be perpetually locking people with records out of employment, you know, and that has deep, long lasting socie- societal harms, especially to communities of color.

What these studies reveal is employer racism that exists regardless of any ban the box policy. And we need to address that either way. So let’s dismiss this false choice. Let’s ban the box and vigorously enforce our anti-discrimination laws. In another context, if there was a righteous policy, it’s positive impacts that somehow incentivized corporations to violate some other law, we’d say. “Enforce that other law.” (laughs) I think it’s the, the stereotypes and the stigma about people with records that is causing, causing this sort of reaction.

John Donvan

Well, Beth, let me jump in with-

Beth Avery

Yeah.

John Donvan

… a thought that’s crossing my mind. What do we know about what happens further down in places where ban the box has been put into effect when ultimately an employer does find out that applicant X does have a criminal record? Does it… Is something different happening in the interaction because of that delay?

Beth Avery

Well, I can say that research shows that if an employer is gonna discriminate, it’s most likely to happen at the first interaction at the submission of a, of a job application. You know, part of the problem with us not fully addressing the needs of people with records is that that population is so often dehumanized. So let’s have the employer choose the applicant of their choice (laughs) based on their qualifications, their resume, interview, and then make a decision.

John Donvan

I see. So what you’re saying is that if that piece of information is not there and, and, and in all other ways, the applicant looks appealing, looks attractive, looks qualified, that having that revealed later in the process, maybe more, maybe less likely to be a disqualifier because the employer is sold on all of the other qualities that have been revealed through the process, is that the thought?

Beth Avery

It’s allowing employers to put the stereotypes and the stigma aside and consider a person a job applicant as more than just their record, more than just the checkbox, which is, you know, really the ultimate goal here.

John Donvan

Okay. The rea- the reason I wanted to tease that out a little bit is that, Jennifer, you made the point in your opening that, look, ba- you know, what… If you take away ban the box, there’s still gonna be that point of, of a reveal of a criminal record, and that it kind of makes no difference in the end. And I, I was trying to get at whether it, does it make a difference or does it make, not make a difference in the end?

Jennifer Doleac

I think, um, your, your question is getting at what the hope with this policy was that, you know, people with-

John Donvan

Mm-hmm.

Jennifer Doleac

… with records be able to get their foot in the door, build rapport with an employer, have them see them as something other than their criminal record. And then when they actually, you know, finally got around to checking their background, they wouldn’t care about the record because they’d become convinced that this person is, is a good person who deserves, you know, deserves, deserves a chance at this job. Um, but what we’re seeing in the data is that’s just not what’s happening. It was a great idea, but it’s an empirical question whether it happens in practice. Um, and I think the combination of that audit study where we saw that, um, you know, now some people, some, especially Black applicants with criminal records are now getting a callback.

But then when we see, when we look at the administrative data and who’s actually working, they’re no more likely to actually get a job. And so what that suggests is that at the time of that background check, everyone’s just getting rejected as they would’ve before. But now they’ve gotten their hopes up, and gone all the way through this process. Now, maybe over the next several decades, there’s some sort of culture change that this all, um, this all inspires. And again, I think that is, uh, an interesting argument that, um, uh, we can’t, we can’t disprove with with data like this, but it’s a lot to pin our hopes on that when we know that there are people, a lot of people harmed, um, in the short run. Um, and people who already struggle in the labor market for a variety of reasons.

Beth Avery

I think it’s important to tease out here that not all ban the box, fair chance policies are created equally, that we’re treating it as a yes or no, a binary. But, in fact, you know, the better policies are policies that delay, uh, the employer’s inquiries, employer’s background check until after they’ve actually made a conditional offer of employment. And those policies also require employers to consider some basic, you know, common sense things. Is the, uh, conviction record actually related to the job? How long ago did the conviction record occur? And, and make an assessment like that and not, not reject someone unless those things are true. So I- I’ll say that, you know, when we’re talking about the research on the band in the box, some of these policies that we’re looking at only removed it from the initial application, but the que- the policies that are gonna have the, better more effect are the fair chance policies that do more and then that we can continue to build on as we move forward.

John Donvan

Jennifer, I-

Jennifer Doleac

I would actually argue that they’re more… those, they’re likely to hurt more because it, it imposes more of a cost on employers on the backend if they do wanna reject this person. Um, and so, I think what the research tells me is employers really are worried about the criminal record as a signal of something. Um, whether it’s the person’s still engaged in criminal activity, that this person has emotional trauma that they probably haven’t dealt with and gotten treatment for, whole bunch of stuff. Um, and, and if, if we’re not doing anything to directly address those concerns, then employers are still not going to want to hire… We can’t force them to hire them when they don’t wanna hire. They’re just gonna be more, uh, proactive about not interviewing those people upfront so they don’t have to pay this, this tax that these, um, more intensive policies are, are putting in place.

Beth Avery

We’re not talking about just people that are recently released from incarceration. Like, of course, that’s an incredibly important population to be talking about, and we’re gonna need other policies to, to help those people rebuild their lives a- after the terrible experience of being incarcerated. But people who were re- released years ago, people who had minor convictions, people who had, sometimes people who had arrests, not convictions at all, these people are still missing out on job opportunities. And the research shows that their employment prospects, their earnings are impacted for the rest of their lives.

So I do think that there is some nudging that we can do to encourage employers to break the status quo. You know, there’s also this thumb on the scale from the for-profit background check industry, um, selling employers on the fact that they need this information, that they, you know, provoking fears and, you know, that needs to be counteracted.

John Donvan

And yet, Jennifer, we see that, that that ban the box movements have bipartisan support among legislators. What, what… Tell… What is that about? Why, why is it so popular if it’s so flawed?

Jennifer Doleac

I think because it’s really cheap and easy. We’ve, you know, we have been locking up people in this country for decades and offering very little in terms of any support or rehabilitation. Um, and then when people get out, we’re surprised that they…. that no one wants to hire them. Um, and so advocates come along and offer politicians a quick and easy fix, costs you no money to pass this policy. It doesn’t require any investment from taxpayers or civilians, uh, or any really heavy lift from policymakers, uh, either to fix this. It’s a magic wand. Uh, we can, we can absolve ourselves with any guilt for mass incarceration for all these years, um, with this very easy fix, and we’ll just tell employers they can’t check someone’s background at the, uh, they can’t ask about a criminal background check anymore. Um, and, uh, surprise, surprise, it didn’t work. So, I mean, honestly, that’s my very cynical answer for why this is-

Beth Avery

Yeah.

Jennifer Doleac

… these have been so popular and so, so bipartisan.

Beth Avery

And I think it’s mischaracterizing what the advocates are actually asking for. No one is claiming that ban the box is a silver bullet to address the employment barrier space by people with records. We’re saying it’s a first necessary step. And, you know, you said it’s cheap and easy, so I say it’s a false choice between ban the box and other policies. Let’s do both. Yes and. Like, there’s no, there-

Jennifer Doleac

It’s actively hurting people. It’s keeping Black men without a criminal record from getting a job.

Beth Avery

I don’t think that the data really sh- I mean, uh, so we’ve been dancing around it, but you’ve named a couple studies or you’ve identified a couple studies that, you know, supposedly show statistical discrimination. But there are other studies out there that show that there’s no, uh, statistical discrimination re- resulting from ban the box. So at best, the evidence is mixed, but extraordinary claims require extraordinary evidence. And this research, you know, it’s, it’s purporting to undermine a movement built by people with records of communities of color, and I, I think we need more before we abandon it.

Jennifer Doleac

So I am not familiar with the other studies that you’re talking about that show no discrimination, no statistical discrimination. The vast majority of studies can’t look at this, um, because they’re, they’re looking at specifically people with criminal records that they’re, they’re linking with employment data. I just completely vehemently disagree that the literature is not showing that, uh, ban the box is not only not helping people with records, it is harming Black men without records.

And until we get really clear that that’s not, that, you know, that that is not happening, I think this idea that let’s just keep doing it in the hopes that, um, that it’ll make some people feel good is a really, uh, disingenuous argument.

John Donvan

Okay, I’m gonna step in because, um, because I think we’re getting a little bit meta in the sense that we’re talking about the, the, the nature of the studies, and I think that’s legitimate and, and the, and this, this nature of the disagreement is important to acknowledge, but I don’t think we’re gonna get any farther by taking this a few more rounds. So what we’re gonna do, instead is, um, take a, a break in the conversation and when we come back, we’re gonna continue taking on this question, ban the box, should we banish the criminal history check box from job applications? And in this coming section, we’ll be inviting in some other voices to help, help us go deeper onto that question. So we’ll be back right after the break. I’m John Donvan, this is Open to Debate.

Welcome back to Open to Debate. I’m John Donvan. We’re taking on this question, ban the box, should we banish the criminal history check box from job applications? We are joined by Jennifer Doleac, who is executive vice president of Criminal Justice at Arnold Ventures. And Beth Avery, senior staff attorney at the National Employment Law Project. We’ve been talking about the topic for quite some time, and at this point, I would like to bring in some other voices, uh, individuals who write about this topic and think about this topic and study it as well. I wanna bring in CJG Mella, who is criminal justice reporter for Reason Magazine. CJ, thanks so much for joining us on Open to Debate, and please come in with your question.

CJG Mella

Thanks for having me. It has been a great discussion. Uh, in December, the California Department of Justice filed a lawsuit against Kroger’s alleging non-compliance with the State’s ban the box law. How big of an issue is non-compliance, and do you think these policies are going to require enforcement actions against private employers?

John Donvan

Who would like to take that question first? Beth, it looks like you’re ready to go.

Jennifer Doleac

(laughs)

Beth Avery

Sure, sure. Non-compliance, you know, is certainly something we need to take into account enforcement. Any law that we adopt needs to be implemented and enforced. I’m glad to see that, you know, the California agency that you’re, you’re mentioning is actively enforcing it. There are other ways to enforce other than filing lawsuits, that’s not the only way. So, uh, they’ve started, you know, kind of data scraping across the internet and sending out letters to the employers that they see not, um, complying with, with the re- the requirement to remove questions about criminal records from applicant applications. And so, you know, that’s one way absent litigation that we’re, you know, that they’re incentivizing compliance. But, you know, I think a lot of employers actually do comply. Um, but we certainly need to enforce and make sure that people are following the law.

John Donvan

Jennifer, comment on that?

Jennifer Doleac

I don’t, I don’t know know how many, um, of these lawsuits there are or how widespread non-compliance is. I do know it’s gonna be really difficult to enforce policies like this, um, in the same way that, you know, Beth was talking earlier about how this really just reveals that racial discrimination, which is illegal, uh, is possible, and that employers are racially, racially discriminating, um, when they can’t ask about a criminal record. The problem is, it’s really difficult to enforce that. Uh, so you get these, you know, really big employers where you have a ton of data looking at their hiring. You might have a shot at being able to look at different data trends and seeing disparities or seeing that, you know, overwhelmingly they’re denying people with criminal records. And maybe, maybe there’s something, you know, there’s a lawsuit there somewhere.

But the vast majority of employers have nowhere near that number of people that they’re hiring or, or, um, that are applying for jobs every month or year. And so, there’s just… Unless they’re foolish enough to say out loud, “I’m not hiring you because you have a criminal record,” there’s no way we’re ever gonna know why someone didn’t get a job. And it’s gonna be almost impossible to enforce this.

Beth Avery

Yeah, well, the best policies actually delay a, um, criminal background check until after a conditional job offer. So that means that the employer actually needs to say just that, “I am rescinding your job offer because of your conviction history, because of your record.”

Jennifer Doleac

But they can give you a reason. And it’s not that hard to come up with a reason.

Beth Avery

It’s harder to rescind a job offer, (laughs) especially when these laws prohibit other reasons for rescinding it. For example, New York City, you’re only rescinding it because of a person’s criminal record when you get to that stage, after you’ve run the background check, after you’ve asked those questions. It’s attempting to isolate that part of the decision. And so that’s how we’re gonna enforce the laws.

John Donvan

Thank you, CJ, very much for your question. Thanks for joining us. I wanna bring in now Beth Milito, and Beth is the executive director of the Small Business Legal Center at the National Federation of Independent Business. Beth, thanks so much for joining us on Open to Debate and come on in with your question.

Beth Milito

Thanks for having me today. Beth, you said that it’s patently unfair to screen out people at step one, but many laws, you know, go much further than that, and you’re not even allowed to inquire about criminal history until after a conditional offer has been made. What would you say about allowing inquiries into criminal history at step two? And this, I would call the interview step. So knowing that a person’s criminal history is part of the public record, and it’s information that’s used by school districts, landlords, even little leagues, to get a general sense of an applicant’s character. Why should employers, at the interview stage, not be permitted to inquire about potential criminal convictions and start to make that individualized assessment face to face? Would this not eliminate some of the unintended consequences we’ve discussed today?

Beth Avery

So I take your question as, you know, instead of just removing it from the application, instead of waiting until a conditional offer, why don’t we ask somewhere in the middle? That’s not gonna separate, remove the stigma from the assessment of the person as adequately. It’s also gonna be, you know, a lot harder to make sure that employers are, are, are following the law. And remember that the first step in ban the box, even when we’re waiting until after a conditional offer, is that the employer selects the applicant of their choice. And what are the most important things we’re looking at when an app- when we’re selecting applicants? Their qualifications.

You know, there are many reasons for employers to embrace ban the box, but in general, background checks don’t help make better hi- hiring decisions, and it’s hard to move away from the status quo. You know, we need a nudge. Background checks, in general, don’t help employers make, uh, better decisions in terms of, you know, workplace safety. There’s no evidence that workers with records are more likely to cause problems on the job. And workers with records are strong employees. That’s what studies generally show. So, you know, if we’re relying on background check information in the beginning of the process, we’re just letting unfair stereotypes control the decisions and, and that’s not fair.

Beth Milito

What would you say then, Beth Avery, to the small business owner who owns a plumbing contract company, and is hiring individuals who will be going to the homes, private homes, sometimes in the house alone, possibly without homeowners there? And would you tell that business owner that they should not do a background check to find out if there was, you know, any sort of criminal conviction that would be relevant to that job, IE, let’s say theft? Is it on the business owner to assume all the liability of, you know, hiring somebody who might go in and potentially re-offend, and? You know, a small business owner, their reputation is everything.

John Donvan

Beth, I gotta jump in to let, to let to let the other Beth Avery answer your question, so thank you.

Beth Avery

So I think we need to remember what we’re, what we’re debating here today. Ban the box, fair chance policies, just delay the background check. (laughs) They delay the inquiries. So to say that they have any impact on safety, when the employer is going to get to see that information and assess it before the hiring decision is finalized, it’s just disingenuous to say that it’s gonna have any impact on safety. You know, certain employers that may have more of a reason to wanna look at background check information, for the most part, the ban the box laws across the country make exceptions when there are laws, um, that require a background check or require looking at that, and we’ve got a lot of those laws on the books. I think those exceptions are unnecessary because you’re gonna run the background check eventually anyway, but the… It doesn’t change the fact that that’s how most of the laws are.

John Donvan

Jennifer, would you like to comment on what’s been said so far?

Jennifer Doleac

Yeah, I mean, I think this question about what employers are worried, worried about is super important. And, um, and I think taking them at, at their word that they do find this criminal record information useful is also important. There, there has been research where people try to look at, like, people who have a criminal record, what are they like as employees? In our current context, they have to jump through a lot of hoops to get that job. So that’s probably a really exceptional group of people. Extrapolating from that group and saying everyone with a criminal record would be a perfectly safe, perfectly good employee is just, is just not taking this issue seriously. There are a couple of really interesting policies out there that could potentially shift the risk from employers that are worried about lawsuits or bad press to courts or to government that, you know, that then they basically screen people and, and give someone, say, a real rehabilitation certificate or provide insurance, things like that where if we as a society say, this is in our best interest to help these people get jobs, but we recognize that, you the employer, are taking on a risk here.

I think there are other policies like that, that are much more promising at solving this problem, um, and kind of get around this, this game about, like, when exactly do we ask about the criminal record?

Beth Avery

I just need to drive home that background checks are still getting run under ban the box policies. And we’re, you know, we’re starting to conflate multiple discussions here.

John Donvan

I thi- I, I think that’s a fair point, Beth Avery, but I, but I have a question for you.

Beth Avery

Of course.

John Donvan

Do you similarly challenge criminal background checks? Do you find those problematic, or do you think that those are in a different, very, very different phenomenon from that first round of check the box?

Beth Avery

I’ll say that, do I dream of a world where we don’t need to run background checks where, where employers don’t feel compelled for most jobs? Yes. Are we there now? No. Do I think that we can take steps in that direction, you know, to require that employers have some sort of business necessity for rejecting somebody with a record? You know, New York, the whole state has a law like that. Illinois has a law like that. Atlanta recently passed a law like that. So can we take steps in that direction? Sure. But we’re not there yet in terms of, you know, getting rid of background checks. And I’m not trying to say that we need to hurry there.

Jennifer Doleac

I also just wanna add, like, I mean, most employers I talk to are desperate to find good employees who are gonna show up every day and do a good job. And the idea that they’re just, you know, rejecting perfectly good applicants who they don’t have a good business reason to reject, um, is, is just doesn’t seem connected with the reality of the labor market. It seems clear to me the vast majority of employers are genuinely worried about a criminal record for some reason. They think it is a signal of something. And so until we change their minds about that-

John Donvan

What, what do they think-

Jennifer Doleac

… all other stuff is sort of window dressing.

John Donvan

… it’s a signal of?

Jennifer Doleac

I think, um, well, this is sort of a million-dollar question. We’re, we’re not, uh, we’re not entirely sure, but in sur- in actual surveys of employees, they do talk about legal liability risk. They worry about, um, someone committing another crime on the job. I think the nightmare scenario for most employers is someone assaults a customer or a fellow employee, um, and then they’re liable, maybe legally liable, um, in a negligent hiring lawsuit, but honestly, probably much more likely just liable in terms of bad press. Um, if there’s a local newspaper article saying they hi- this person hired a felon and, um, and assaulted a customer, and that person’s in the, you know, in the ER right now, then they lose all their business, that’s a catastrophic risk for a business owner.

Um, and if we don’t take that seriously, we’re not gonna solve this problem. I genuinely think there are other policy solutions here we could be pursuing. Um, which, uh, which, you know, focusing on ban the box precludes us from doing.

John Donvan

Beth Milito, I wanna, I want thank you for joining us. I, I need, need to, to let you go, but thanks very much and, uh, Beth Avery, you had a response.

Beth Avery

Yeah, I just wanna agree that there are other policy approaches and I say yes and let’s do both. They’re not mutually exclusive. You know, part of what you, you said earlier that, you know, ban the box is, is cheap and that’s, that makes it easy to also fund some of these other programs that we’re trying to do. So I say do both. Um, and in terms of the legal liability that, um, that we were talking about a moment ago, you know, the research shows that those concerns are overblown, that liability is rare. For most jobs, the risk of liability is extremely low.

And if you’re talking about, you know, negligent hiring liability, getting sued for something like that, the causality required to prove those cases is very difficult. And it, it, it, quite frankly, something must have happened in the regular course of a job that was closely related to the conviction. And what are we trying to encourage employers to do? To look at the job relatedness of the conviction. So if you’re doing that, you’re not gonna be setting yourself up for any legal liability issues.

Jennifer Doleac

I think the problem is that-

John Donvan

A- as we, as-

Jennifer Doleac

… in retrospect, almost anything can look like a red flag, right, if it turns out they just had a marijuana conviction and then they went on to, um, to assault a customer. It’s like, “Well, we should have known that this person, uh, you know, was, was hanging out with a bad crowd and was, was, uh, involved in drugs. And so that, that is the reason that we should have known not to hire them.” And again, I think, you know, sometimes it’s negligent hiring risk, and that’s something clearly employers are worried about based on current screening practices, they’re not sued very often, I agree. But if we change their screening practices, they might be. But really, I think what they’re more worried about is the bad press. Um, and so that’s gonna be the court of public opinion.

Beth Avery

There’s survey data out there, you know, that supports that customers and coworkers have supportive attitudes, you know, that shows that most customers are comfortable visiting businesses that employ people with records and receiving assistance from formerly incarcerated employees, and the same for workers and their coworkers. So I do think that we’re moving in that direction, and… But if we let, you know, if we continue to accept that people with records are dangerous, and we play into these fears, we’re never gonna get past that. And so, you know, band the box fair chance policies is attempting to, to, to break up that stigma, to move past it. Do we need to do other things? Yes. Yes, let’s do more.

Jennifer Doleac

I’m 100% in favor of culture change. I think that is one of the biggest benefits that ban the, ban the box movement has given us. It’s the actual policies that get out ahead of the culture change that is having the unintended consequences.

John Donvan

Okay. So as we come towards the end, we hear the two of you finding some common ground in a place in where you can agree. But in our closing round, which we’re coming to now, it’s your last chance to tell us why you disagree. So we’re gonna go to closing remarks. Beth Avery you have the first opportunity to tell us one more time why you believe we should ban the box.

Beth Avery

Thank you. I first heard Sandra Johnson tell her story back in 2017, when we were working together to pass the California Fair Chance Act. Sandra spent 15 years in and out of prison. She’s all too familiar with how it goes to check the box on job application after job application and never get a call back. But with some assistance, she managed to land a job as a driver at a local transportation company after she was released the last time. She worked there for six years, and dedicated herself to being a team player. She was never disciplined. She was named employee of the month, and driver of the year. She was supporting herself, and that gave her something to feel good about.

Then the company changed management in 2013, and she was abruptly fired after a background check. When Sandra tells this part of her story, she frequently becomes emotional because it meant that none of her hard work and progress mattered. In the end, all that mattered was her record. Sandra is a mother, a grandmother, and a great-grandmother. Um, and since the passage of the California Fair Chance Act, she’s worked as an advocate for people with records. Now she’s at Legal Aid at work. She knows the Fair Chance Act was important, but that more is needed.

And she’s currently working with the California Coalition to support the Just Access to Jobs Act that’ll build on the California Fair Chance Act and take the next steps to ensuring fair job opportunities for people with records. Now, because this whole debate really boils down to whether we truly respect the humanity of people with records, I’ll end with Sandra’s words. “I am a person, I am a human being. And like all other formerly incarcerated people, I deserve a chance to make a living, support my family and myself to be a contributing member of the community and an asset to my society.”

John Donvan

Thank you, Beth. And now Jennifer Doleac, you have the final word in this debate. Your closing statement, please, to tell us why you think banning the box is not a good idea.

Jennifer Doleac

So I care about this issue because I care about helping people with criminal records, reintegrating their, into their communities, breaking the incarceration cycle, helping them find jobs, support their families, support their communities. We’ve tried ban the box policies, they don’t work. They’ve actually broadened discrimination in a way that harms young Black men who don’t have criminal records. It’s time to abandon these policies and focus on alternatives that take employers concerns seriously. Now, I’m an optimist. I see a few paths forward here. One, as I said before, we can find a way to shift the risk from employers to courts or the government. One way to do this is through court-issued rehabilitation certificates. There have been a few interesting audit studies now showing if you have a certificate, uh, a judge has said you are work-ready, and have been rehabilitated, uh, employers call you back at same, the same rate as if you never had a conviction at all.

Another possibility is providing insurance that covers employers in the case that someone commits a crime on the job. This is similar to what exists in the Federal Bonding Program, but at a much higher rate. A recent study, an experiment on a job platform suggested $1 million insurance, uh, uh, policy covering all, um, anyone with a criminal record who’s hired that was, uh, substantially ha- had a meaningful impact on getting employers to hire people with criminal records. The second thing we could do is invest in rehabilitation. If a criminal record doesn’t, uh, signal anything negative to an employer anymore in terms of someone’s work readiness, then employers won’t care about it. One thing I think it’s really important is improving healthcare access, including mental health care and substance use treatment. Another is cognitive behavioral therapy, a program that’s been found to be super effective at, uh, reducing people’s recidivism and increasing educational attainment.

Finally, we need to acknowledge how difficult this problem is to solve and aim to fail fast rather than not fail at all. The reality is, most of our good ideas will not work. To figure out what does work, the needles in the haystack of good ideas will need to implement new programs, uh, and policies in a way that allows us to, to study their impacts. And I really just wanna close by urging everyone to keep our eye on the ball. Our shared goal here is helping people with criminal records find steady jobs and reintegrate into their communities. So let’s collectively demand evidence that our policies are accomplishing this.

We might have different ideas about how to get there, and that’s fine. That’s great. Let’s try all those different approaches and see where they take us. My main ask is that we don’t become wed to solutions before we know if they work, and that we don’t let our egos and politics get in the way of changing people’s lives.

John Donvan

Thank you, Jennifer. And that is a wrap on this debate, and I wanna thank both of our debaters, Beth Avery and Jennifer Doleac. Uh, we so appreciate that you came and addressed this issue, this tough issue with empathy actually for, uh, those that we’re talking about and also for one another, and, uh, that you did so civilly. It’s what we aim for when we, when we put on these conversations and discussions at Open to Debate, you both were just superb at doing so. So thank you so much for taking part in this debate with us.

Jennifer Doleac

My gosh, thank you so much for inviting us.

John Donvan

And I also would like to thank our guests, CJ and Beth for what they brought to the conversation as well. And finally, a big thank you to all of you, the audience for tuning into this episode of Open To Debate. You know, as a nonprofit working to combat extreme polarization through what you just heard, civil debate, our work is made possible by listeners like you, by the Rosenkranz Foundation and by supporters of Open to Debate. Robert Rosenkranz is our chairman. Our CEO is Clea Conner. Lia Matthow is our chief content officer. This episode was produced by Alexis Pancrazi and Marlette Sandoval. Editorial and research by Gabriella Mayer, Andrew Foot, and Vlad Virtonnen. Andrew Lipson and Max Fulton provided production support. Mili Shah is director of audience development.

And the Open to Debate team also includes Gabrielle Iannucelli, Rachel Kemp, Linda Lee, and Devin Shermer. Damon Whittemore mixed this episode. Our theme music is by Alex Clement, and I’m your host, John Donvan. We’ll see you next time on Open To Debate.