On January 29, 2013, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued Directive No. 306: "Complying with Non-Discrimination Provisions: Criminal Records Restrictions and Discrimination Based on Race and National Origin." The Directive advises federal government contractors and subcontractors that hiring policies and practices that exclude workers with criminal records may violate employment discrimination laws because of racial and ethnic disparities that exist in the criminal justice system. The Directive incorporates the principles of the Enforcement Guidance issued by the Equal Employment Opportunity Commission in April 2012 (“Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”), which was the subject of an April 30, 2012 Pepper@Work. The EEOC’s Enforcement Guidance applies to all employers that have 15 or more employees. Federal contractors subject to the OFCCP's jurisdiction were already subject to the EEOC's Enforcement Guidance. Also, as the Directive notes, the EEOC is the lead government agency for interpreting Title VII, and the OFCCP follows Title VII principles in interpreting Executive Order 11246 (which prohibits discrimination by federal contractors and subcontractors on the basis of race, color, religion, sex and national origin). By its Directive, the OFCCP seeks to inform contractors of the Enforcement Guidance and the implications of using criminal records in employment decisions.
The OFCCP cautions that hiring 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 ... 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 anti-discrimination law.” Recognizing that individuals with criminal history records are not a protected class under the federal antidiscrimination laws, the OFCCP explains that consideration of criminal history can nevertheless be discriminatory based on race or ethnicity. The Directive refers to studies showing that employers may treat a white employee with a criminal record more favorably than an African-American employee with a similar record, which could lead to a disparate treatment claim of race discrimination.
Using criminal records in hiring decisions could also trigger a disparate impact claim because a disproportionate number of African-American and Hispanics have conviction histories as compared to whites. If a contractor’s criminal records policy has a disparate impact on African-Americans or Hispanics, the contractor will likely be liable for discrimination unless it can show that the policy is job-related and consistent with business necessity. The EEOC’s Enforcement Guidance suggested that employers can meet that defense either by validating the criminal history policy in accordance with the EEOC’s Uniform Guidelines on Employee Selection Procedures, or by analyzing three factors drawn from the decision of the U.S. Court of Appeals for the Eighth Circuit in Green v. Missouri Pacific R.R., 549 F.2d 1158, 1160 (8th Cir. 1977) that illuminate whether the policy effectively links the criminal conduct with the duties of the particular job being sought. The Green factors are (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense, conduct and/or completion of the sentence, and (3) the nature of the job held or sought.
The OFCCP recommends that contractors follow these best practices suggested by the EEOC for avoiding liability for discrimination based on the use of criminal records in employment decisions: (1) criminal records policies should incorporate an individualized assessment to review, for each applicant’s conviction(s), the particular job’s requirements, the appropriate duration of time to exclude applicants with convictions for a particular crime, and whether the particular crime demonstrates unfitness for the particular job; (2) contractors should refrain from asking about convictions on job applications, and any such inquiries during the hiring process should be “limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity”; and (3) criminal record information should be kept confidential and used only for the purpose for which it was intended.
The Directive also references a May 2012 Guidance Letter issued by the U.S. Department of Labor’s Employment and Training Administration, which advises public workforce system entities (and other entities that receive federal financial assistance to operate job banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants) to adopt safeguards to prevent discrimination and promote employment opportunities for individuals with criminal records. Government contractors subject to the Vietnam Era Veterans’ Readjustment Assistance Act are required to list employment openings with an employment service office, which are entities covered by the Guidance Letter, and should be aware of the procedures outlined in the Guidance Letter. The Guidance Letter provides, among other things, that covered entities should notify employers that register to post job openings that the covered entity “must comply with federal civil rights laws which, due to the likely disparate impact of criminal record exclusions on protected groups, generally prohibit the categorical exclusions of individuals based solely on an arrest or conviction history.” Covered entities are supposed to implement a system to identify employer postings that include hiring restrictions based on arrest and/or conviction records and to provide the employer an opportunity to remove or edit the posting. If the job announcement retains a criminal history exclusion, it can be posted only if it notifies job seekers that “the exclusions in the posting may have an adverse impact on protected groups and ... that individuals with criminal history records are not prohibited from applying for the posted position.” Further, the Guidance Letter advises covered entities to refrain from screening and refusing to refer applicants based on their criminal record. Importantly, the Guidance Letter applies to all jobs available through a covered entity’s job bank, whether the job is in government or the private sector.
It is possible that the OFCCP will ask to review a contractor’s criminal records policy and practices during an affirmative action audit. In light of the OFCCP’s Directive, federal government contractors and subcontractors should review carefully their policies and practices governing the hiring of applicants with criminal records to make sure that they incorporate the Green factors and contemplate an individual assessment of the particular circumstances of the job and the applicant’s criminal history.