June 27, 2016

"Ban the box" laws and disparate impact liability

By Wen Fa Attorney

Pacific Legal Foundation opposes disparate impact, a form of liability that brands an act (e.g. an employer’s hiring practice) as discriminatory just because it does not produce the “right” racial result. There are many objections to disparate impact liability, but chief among these is that such liability leads to disparate treatment on the basis of race. In other words, statutory liability for disparate impact is at odds with the constitutional and moral imperative of racial neutrality.

The most recent example deals with “ban the box” laws, which forbids employers from asking job applicants about criminal history on the initial job application. Disparate impact proponents see “ban the box” laws as a way to reduce disparate impact and promote equal opportunity.

But according to a recent article, “ban the box” laws have actually increased racial discrimination. A study conducted by professors at Princeton University and the University of Michigan Law School showed that the callback rate decreased for black applicants after “ban the box” laws were adopted in New York and New Jersey. That’s because “ban the box” laws make it impossible for applicants to disprove inaccurate assumptions that some employers hold about the correlation between race and criminal history. Once again, an effort to decrease disparate impact has increased disparate treatment.

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