Last April, we told you about the EEOC’s updated Enforcement Guidance regarding an employer’s use of arrest and conviction records when making employment decisions. On January 29, 2013, the OFCCP issued its own guidance on this topic in the form of Directive 306. Federal contractors and subcontractors who are being investigated by OFCCP should expect heightened scrutiny of their use of criminal histories.
OFCCP Follows EEOC’s Lead
The OFCCP’s guidance is not long, and much of it is spent summarizing the EEOC’s guidance. Like the EEOC, the OFCCP begins by noting the racial and ethnic disparities reflected in American arrest and incarceration rates. In light of these disparities, the OFCCP cautions federal contractors to be mindful of federal antidiscrimination laws when rejecting candidates based on their criminal histories. Those laws may be violated if contractors engage in “disparate treatment,” e.g., treating a Caucasian with a criminal record more favorably than a similarly-situated African-American with the same or similar criminal record.
A violation may also occur when a contractor uses a selection process that, although neutral on its face, has a “disparate impact” on members of a protected group and is not job-related and consistent with business necessity. For example, a policy or practice that categorically excludes individuals with any kind of conviction or arrest record is likely to have a disparate impact on minorities given the racial and ethnic disparities reflected in the criminal justice system. Such a policy or practice would be unlawful if not job-related and consistent with business necessity. To meet the job-related and consistent with business necessity standard, the contractor must be able to show that the policy or practice “effectively link[s] specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” An individual assessment should be made, and relevant factors would include:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct and/or completion of the sentence; and
- The nature of the job held or sought.
OFCCP’s Recommendations
The OFCCP guidance goes on to endorse the EEOC’s “best practices” concerning use of criminal histories, including the recommendation to refrain from asking about convictions on the job application altogether. Notably, this recommendation is consistent with a growing number of state and local laws that require criminal history inquiries to be made later in the hiring process. The OFCCP also advises contractors to ensure that individuals’ criminal records are kept confidential and used only for their intended purpose.
Finally, the OFCCP reminds contractors to comply with the Fair Credit and Reporting Act when using third parties to conduct criminal background checks, and urges them to consider taking advantage of the Work Opportunity Tax Credit and Federal Bonding Program, which provide incentives to support employers’ hiring of individuals with conviction histories.
If you have questions regarding this topic, please contact Jon Bumgarner at 317.977.1474 or jbumgarner@wp.hallrender.com or your regular Hall Render attorney.
