On January 29, 2013 the Office of Federal Contract Compliance Programs (OFCCP) provided guidance to federal contractors on hiring policies and processes that screen out job applicants who have criminal records. OFCCP’s Directive 306 cautions covered employers that hiring policies that summarily exclude applicants from employment based on a criminal record, without considering such factors as the age and the nature of the offense, may have a disparate, and therefore illegal, impact on racial and ethnic minority job applicants. OFCCP summarizes its current position as follows: “Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law.”
Directive 306 highlights several best practices to avoid liability for discriminating on the basis of an applicant’s criminal record. First, OFCCP suggests that employers not inquire about the applicant’s criminal record at all. But if the employer does inquire, OFCCP suggests that the employer ensures that its applicant screening policies and procedures include an individualized assessment of the applicant’s past criminal conduct and are narrowly drawn to screen out only applicants whose criminal convictions demonstrate unfitness for performing the job or jobs in questions. In other words, before a criminal conviction is considered as disqualifying, the OFCCP Directive cautions that the offense should be related to the job duties for which the applicant is being considered and the employer can articulate a business necessity for disqualifying the applicant.
Federal contractors and subcontractors should review their hiring processes to determine the extent to which they exclude minority applicants from employment based on criminal history, even if unintentionally, and have legal counsel review these policies, and the statistical results of applying them, to ensure compliance with OFCCP requirements.