Fixes that Fail: Banning the Box to Reduce Employment Discrimination

Here's a criminal justice reform example of the "Fixes that Fail" archetype.

The Problem

Communities across America faced a crisis of recidivism and unemployment among formerly incarcerated individuals. People with criminal records faced severe employment barriers, with research showing that criminal justice involvement disproportionately affected minority communities. The checkbox asking "Have you ever been convicted of a felony?" on job applications became a barrier that prevented millions from even getting a chance to interview, creating a cycle where lack of employment led to higher recidivism rates.

The Quick Fix

Beginning in the early 2000s, advocates successfully pushed for "Ban the Box" policies that prohibited employers from asking about criminal history on initial job applications. These fair-chance laws were designed to give people with criminal records a better opportunity to demonstrate their qualifications before being screened out based on their past. The logic was compelling: if employers couldn't see criminal history upfront, they would evaluate candidates based on merit and qualifications.

Initial Success

The policy appeared to work exactly as intended:

Increased application rates from people with criminal records who previously wouldn't have applied
Higher callback rates for people with criminal histories who could now get past the initial screening
Studies found that ban the box policies "raised the probability of public employment for those with convictions by about 30% on average"
Widespread adoption across 29 states and hundreds of municipalities
Bipartisan support as both Democrats and Republicans embraced second-chance policies
Reduced legal liability for employers by removing an obvious source of disparate impact

The Unintended Consequences

Within a few years, rigorous research revealed devastating unintended effects:

Dramatic increase in racial discrimination: "BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men"
Statistical discrimination escalated: When employers could ask about criminal records, "white applicants had a relatively slight advantage: They received about 7 percent more callbacks than equally qualified black applicants. After Ban the Box was adopted, this gap ballooned to 45 percent"
Racial profiling became the norm: Without criminal history information, "employers use race to proxy for convictions," which is racial profiling
Employers' assumptions were wildly inaccurate: Research found that employers "greatly exaggerated" racial differences in criminal history rates and "assumed that more than half of young black applicants had a felony conviction, even though this was not based on any plausible, real-world measure"

The Larger Problem Emerges

The well-intended policy created broader discrimination and social dysfunction:

Minority men without criminal records were penalized: The policy hurt exactly the people it was meant to help, as employers used race as a proxy for criminal history
Legitimate criminal justice reform was undermined: The backlash against Ban the Box studies threatened to derail broader reform efforts
Employer discrimination became more sophisticated: Companies found ways to screen out applicants they suspected of having records through informal means
Trust in reform policies declined: Some researchers concluded that the policy should be "abandoned because it does more harm than good"
Systemic racism was masked rather than addressed: The policy treated the symptom (the checkbox) rather than the root cause (racial bias in hiring)

The Vicious Cycle

Facing criticism and mixed results, some jurisdictions responded with: - More restrictive implementations that allowed employers to check backgrounds earlier in the process - Expanding exceptions for industries and job types where criminal history could be considered - Weakening enforcement of anti-discrimination protections - Retreat from criminal justice reform as policymakers lost confidence in evidence-based approaches - Employers developing workarounds like requiring extensive background information that functionally recreated the box

The System Structure

Employment Barriers for People with Records → Ban the Box Policies → Reduced Direct Criminal History Screening → Increased Statistical Discrimination & Racial Profiling → Worse Employment Outcomes for Minorities → More Sophisticated Screening Barriers

The Root Cause Solution

Genuinely addressing employment discrimination might involve:

Comprehensive anti-discrimination enforcement that targets racial bias in hiring regardless of criminal history policies
Skills-based hiring practices that focus on job-relevant qualifications rather than demographic proxies
Employer education and bias training to address statistical discrimination directly
Graduated background check policies that consider job relevance, time elapsed, and rehabilitation evidence
Economic incentives like tax credits for employers who hire people with records
"Clean slate" policies that automatically seal old, minor records to reduce the pool affected
Community-based job placement programs that provide ongoing support and accountability

This example demonstrates how addressing the symptom of a problem (the checkbox) without addressing the underlying disease (racial bias) can make the core issue worse. As advocates noted, "The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as 'criminals'". The policy succeeded in removing one barrier but inadvertently created new, more subtle forms of discrimination that were harder to detect and combat.

Systems Thinking Lessons

This case illustrates several critical systems principles:

Symptom vs. Root Cause: Ban the Box addressed a visible symptom (the checkbox) but not the underlying bias that created the barrier in the first place.
Information and Behavior: When legitimate information is removed, people often substitute with less accurate proxies. As one study noted, "Without information about criminal convictions, an employer might make judgments about job candidates based on perceived likelihoods".
Unintended Consequences: Well-intentioned policies can harm the very people they're designed to help when they don't account for how actors will adapt their behavior.
System Delays: The benefits appeared quickly while the harmful consequences took years to become apparent through rigorous research.

The Ban the Box story shows how systems thinking requires us to look beyond first-order effects and consider how removing information or constraints might cause actors to behave in unexpected ways that undermine our original goals.