The Labor Department's Office of Federal Contract Compliance Programs (OFCCP) is the latest government agency to state that hiring bans against applicants with criminal records may violate Title VII of the Civil Rights Act. In a January 29 directive, the OFCCP observes that such prohibitions tend to have a disparate impact on racial and ethnic minorities.
The agency points to statistics showing that although blacks make up about 13 percent of the overall US population, they account for 28 percent of those arrested and almost 40 percent of the incarcerated population. In light of these numbers, it warns federal contractors and subcontractors to be mindful of antidiscrimination laws if they opt to rely on criminal history records during the hiring process.
Hot on the Heels of the EEOC
The OFCCP's directive in many respects mirrors the EEOC's April 2012 Enforcement Guidance on the use of arrest and conviction records by employers. In that pronouncement, the EEOC warned employers to:
Avoid asking applicants about arrests or misdemeanor convictions;
Remember a criminal record should not be an automatic bar to employment; and
Ensure there is a legitimate business reason for requesting such information.
The EEOC suggested that such categorical exclusions could cause employers to miss out on worthy rehabilitated candidates while also possibly leading to Title VII liability. For instance, the EEOC pointed to studies showing that employers may treat whites with a criminal record more favorably than similarly-situated black applicants with the same or similar criminal record.
Contractors Must Take Note
In prominently citing the EEOC's Enforcement Guidance, the OFCCP suggests a number of "best practices" in its directive to help contractors avoid discrimination risks. Most notably, the OFCCP says contractors should:
Consider ensuring that any policies that screen job applicants and employees for criminal conduct require an individualized approach;
Refrain from asking about convictions on job applications;
If they make such inquiries, ensure they are consistent with business necessity; and
Take the age and nature of the offense into account.
The OFCCP also points to a pair of tax credits available to support employers' hiring of individuals with conviction histories: the Work Opportunity Tax Credit and the Federal Bonding Program. The OFCCP's directive takes effect immediately.
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