Informed Applicants: Anti-Discrimination Enforcement Based on the Use of Criminal Records
Pyle, B.
B Pyle - Berkeley J. Emp. & Lab. L., 2026 - HeinOnline
Summary
"Informed Applicants: Anti-Discrimination Enforcement Based on the Use of Criminal Records" by Benjamin Pyle addresses the complex interplay between anti-discrimination enforcement and the use of criminal records in hiring, particularly in the context of "Ban the Box" (BTB) policies. The paper argues that navigating the labor market with a criminal record is challenging, with many applicants being denied employment once their criminal history is revealed. It highlights that criminal records contribute to existing racial and economic inequalities, making their use in employment decisions a matter for anti-discrimination laws. A key issue identified is that applicants often lack information about why they were not hired, which impedes their ability to enforce their rights under these laws. The core argument of the article is that modifying laws concerning the visibility of criminal records, specifically the timing of when employers can inquire about an applicant's criminal history through BTB policies, can empower applicants to enforce their anti-discrimination rights. To support this, Pyle leverages new data from the Equal Employment Opportunity Commission (EEOC), analyzing the frequency and success rates of complaints related to hiring discrimination based on the improper consideration of criminal records. The empirical evidence presented indicates that BTB policies lead to a statistically significant increase in both the number and success rate of such complaints. This suggests that by delaying access to criminal history information, BTB policies increase applicant awareness and provide a clearer basis for discrimination claims. However, the paper also critically reviews evidence regarding the potential unintended consequences of BTB policies. While intended to reduce discrimination against individuals with criminal records, BTB policies "may lead to employers increasingly deploying racial discrimination in hiring". This occurs as employers, lacking upfront criminal history information, might resort to statistical discrimination based on race or other proxies, potentially harming minority applicants without criminal records. To address this tension and enhance anti-discrimination enforcement while mitigating the risks associated with BTB, Pyle advocates for the strategic use of new technologies, such as computer-generated "fake" job applicants in "correspondence" and "audit" studies. This approach, whose cost has significantly decreased, can help identify discriminatory firms and improve the effectiveness of anti-discrimination enforcement in a way that complements BTB policies.
Key Findings
- * "Ban the Box" (BTB) policies, which delay inquiries into criminal histories, lead to a statistically significant increase in the number and success of anti-discrimination complaints filed with the EEOC. * A major barrier to anti-discrimination enforcement for applicants with criminal records is their lack of information regarding employers' hiring decisions. * BTB policies, while aimed at reducing discrimination, may inadvertently cause employers to increase racial discrimination in hiring as they rely on proxies in the absence of criminal record information. * The article proposes that using technology like "correspondence" and "audit" studies with "fake" job applicants can help improve anti-discrimination enforcement and mitigate the unintended racial biases potentially introduced by BTB policies.