Obama “bans the box”

President Obama, with the help of some seriously misguided Republicans, is devoting the last segment of his presidency to helping one of his favorite interest groups — criminals. Not content with letting thousands of them out of jail early, the president is now attempting to improve their chances of obtaining federal employment by banning federal agencies from asking applicants about their criminal histories on job application forms. This policy goes under the slogan of “ban the box.”

My initial take is that there’s actually less to this policy than meets the eye. Obama isn’t ordering federal employers not to explore an applicant’s criminal history or to disregard it; he’s simply deferring the point at which they learn about the crimes of applicants who receive serious consideration. The government will obtain this information for such applicants via a background check.

Obama claims that changing the timing in this way will improve the chances of ex-cons obtaining employment. “If the disclosure of a criminal record happens later in a job application process, you’re more likely to be hired,” he says.

That’s not necessarily true. Large employers typically have rules governing the hiring of ex-cons. For example, serious felonies might carry a complete ban; less serious ones, a ban if committed within, say the past eight years; certain misdemeanors, only if they occurred within, say, three years of the application.

The federal government is close-mouthed about its policies regarding the used of criminal history in the hiring process. But in all likelihood, it uses rules along the lines described above. Otherwise, it would be vulnerable to attack for being too subjective and therefore too likely to discriminate on the basis of race.

Obama says he wants employers to look at the qualifications of ex-cons before they disqualify them. But employers typically don’t weigh qualifications against criminality — the two criteria are entirely separate. If your past criminality is deemed to present an undue risk, it doesn’t matter how qualified you are. The federal government presumably uses this common sense approach to hiring.

The real effects of “banning the box” are more subtle than the ones Obama posits, or so it seems to me on initial reflection. First, it will prevent the feds from excluding ex-cons who lie about their criminal record. Why? Because if an applicant whom the government wants to hire is revealed via a background check to have prior convictions that he didn’t disclose on the application, the applicant can be excluded for lying even if the offense itself wasn’t serious enough to have disqualified. But if the employer doesn’t ask, there can be no exclusion for lying.

Ex-cons who are willing to lie do not deserve to be hired. Now, some will be.

Second, some ex-cons will be hired without the government knowing of their criminal history. Criminal history checks are, after all, not perfect.

Third, banning the box will pave the way for lawsuits against the government. If an ex-con is banned at the outset of the process, he will not know whether he would have been hired but for his criminal history. And even if he suspects this to be the case, he will be hard pressed to prove it.

If, by contrast, an applicant makes it to the offer stage (or close to it) before being barred by criminal history, the problem of proving injury disappears (or is significantly reduced). Obama would probably love to see the federal government start losing lawsuits over its use of criminal history in employment decision-making. What can’t realistically be done by executive order can, perhaps, be accomplished by liberal judges.

In any event, Obama is facilitating such suits. This will, at a minimum, gladden plaintiffs’ lawyers — another of the president’s favorite interest groups.

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