Beyond Ban the Box – Combating Black Underemployment and the Criminality Myth, by Nina Frank

If you are white, how many times have you heard the argument that black people are overrepresented in the criminal justice system because they in fact commit more crimes? That black Americans are somehow inherently more criminal than other racial or ethnic groups? It’s a demonstrably false talking point that is repeated over and over, and it contributes to the devaluation of black lives as well as the exclusion of black men and women from all sectors of the workforce.

According to recent studies, whites significantly overestimate just how much black people are involved in “serious street crime” such as armed robberies, break-ins and drug crimes. One study found that white male police officers were more likely to mistake black boys as being older and less innocent than white boys, and that white college-age females found black children to be significantly less innocent than children of other races.

The myth of black criminality has a long history in the United States, and is integral in perpetuating the system of discriminatory policing, overincarceration, and general state control of black bodies. The myth that black Africans were less moral or more dangerous than whites was 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 that persists even in 2016. It allows 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, and for the American public to then debate about whether or not these killings are “reasonable.” It turns a simple truth – that black lives matter – into something somehow controversial.

But the criminality myth also creates other stumbling blocks: black Americans are forced to fight this pervasive myth in order to get a job and provide for their families (not to mention to secure housing, home loans, small business loans, access to healthcare, clean water, and other necessary resources).

Overincarceration and discriminatory policing have not only removed significant numbers of working age black Americans from the job pool, but it has also created a hardened tautology: The more black people are disproportionately imprisoned, the more it reinforces the myth that they are inherently more criminal. The scientific evidence underlying this phenomenon is laid out in Devah Pager’s book, “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 who had criminal records. Further, black testers in Pager’s study were likely to be asked up front 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%) is roughly half the size of the penalty for blacks with a record (60%).

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 will go a long way in stopping some of the pervasive discrimination that non-white 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 non-whites.

While initiatives like Ban the Box are a necessary tool in fighting 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.

More importantly, even if they have no contact with the criminal justice system, blacks are underemployed at every single level of education, from high school up to PhD level. A recent report by Economic Policy Institute found that black Americans with college degrees still lag behind their white counterparts in employment. In fact, blacks with some college education have a harder time finding work than whites who haven’t even completed high school. While it’s wonderful that the black employment ratio is now the highest it’s been in seven years, 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.

We must acknowledge that 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 in order to weed out applicants, which has a disparate impact on black job seekers, who are disproportionately likely to report poor credit. (As an aside, not only does a person’s credit history seem irrelevant to almost every job, but these employers are foreclosing the only avenue to get out of debt and improve a credit score: a paying job).

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 blacks more than whites, refusing to hire the unemployed has a disparate impact on black job seekers. (I don’t think I need to explain why not hiring the unemployed is ludicrous).

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.

Ban the Box legislation is an incredibly important tool in fighting both black underemployment and the myth of black criminality itself by removing employers’ ability to use criminal history as a proxy for discrimination. However, as detailed above, it only attacks a symptom of the problem created by our racist history, so we need to do more. What is needed to remedy black underemployment is an all-hands-on-deck, holistic approach that acknowledges the omnipresent role that the black criminality myth continues to play.

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Nina Frank

Nina Frank is an attorney in New York, representing individual employees in litigation and negotiation in all areas of employment law.