Document Type
Article
Publication Date
2026
ISSN
1067-7666
Publisher
University of California Berkeley School of Law
Language
en-US
Abstract
Navigating the labor market with a criminal record is treacherous. Countless job applicants will be turned down immediately after a potential employer learns they have had contact with the criminal legal system. Criminal records reflect and exacerbate long-standing racial and economic inequalities in the United States. Thus, the use of records in employment decisions will often implicate anti-discrimination laws. However, successfully enforcing these protections requires job applicants to, at minimum, understand why they were not hired. Many applicants never learn why they were not hired and thus will never be able to protect their rights. This Article argues that understanding and changing laws governing the visibility of criminal records, and in particular the timing of when employers can learn about applicants’ criminal histories, can help applicants enforce their rights under anti-discrimination laws.
To do so, this Article leverages new data from the Equal Employment Opportunity Commission (EEOC) on the frequency and quality of complaints alleging hiring discrimination based on improper consideration of criminal records. It presents empirical evidence that policies delaying inquiries into criminal histories (“Ban the Box” policies) generate statistically significantly more—and more successful— complaints. Applicants’ lack of information about employer decision-making impedes the enforcement of anti-discrimination laws. Therefore, policies that simultaneously increase applicant information and restrict employer information may improve enforcement.
There are potential costs of delaying employer inquiry into criminal records. This Article reviews evidence that Ban the Box (BTB) may lead to employers increasingly deploying racial discrimination in hiring. It argues that the use of new technology, such as computer-generated “fake” job applicants (“correspondence” and “audit” studies), may help improve anti-discrimination enforcement while mitigating the risks of BTB policies. The cost of deploying this tool has dramatically declined in recent years, and it has been used by researchers, government agencies, and non-profits. With almost 1,000,000 fake resumes sent out in the past twenty years, this approach may be able to mitigate some of the risks of BTB policies. Still, it also generates risks of its own by throwing additional friction and uncertainty into the hiring market (e.g., raising the possibility of “ghost applicants” applying to “ghost jobs”). Correspondence studies can help the EEOC detect and pursue claims against discriminatory firms, which may help mitigate potential criticisms of BTB.
Recommended Citation
Benjamin D. Pyle,
Informed Applicants: Anti-Discrimination Enforcement Based on the Use of Criminal Records
,
Berkley Journal of Employment and Labor Law
(2026).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4118
Included in
Civil Rights and Discrimination Commons, Criminal Law Commons, Labor and Employment Law Commons
Comments
Article forthcoming in Berkeley Journal of Employment and Labor Law in 2026