Thinking Outside the Box: Reforming Employment Discrimination Doctrine to Combat the Negative Consequences of Ban-the-Box Legislation

By Nina Kucharczyk

Abstract

As part of the larger movement to reform the criminal justice system, legislation has recently been implemented to expand job opportunities for formerly incarcerated individuals as they exit the system. Specifically, “ban- the-box” laws were passed to reduce widespread employment discrimination that formerly incarcerated individuals encounter by limiting employers’ access to criminal records. While this legislation has increased job opportunities for formerly incarcerated individuals, it has had an impactful and unintended consequence in that employers use the applicant’s race in place of records to assume whether or not a criminal record may exist. Consequently, racial minorities without criminal records are facing heightened discrimination in jurisdictions with ban-the-box laws.

To make matters worse, current employment discrimination laws fail to provide relief for job applicants who suspect discrimination in the hiring process. As such, there is minimal legal recourse for racial minorities facing discrimination due to the ban-the-box laws and no incentive for employers to end discriminatory practices.

This Note suggests a new approach to address the unintended consequences of ban-the-box legislation. The solution to combat unconscious discrimination during the hiring process is not to eliminate ban- the-box laws entirely; instead, lawmakers must modernize and strengthen employment discrimination doctrine to empower racial minorities who suspect discrimination and to ensure employers are critically analyzing their hiring processes.