29 Apr OFCCP Adopts EEOC’s Position on Use of Arrest and Conviction Records in Contractors’ Employment Decisions

Original article from United Benefit Advisors

By Thomas Lucas

The U.S. Department of Labor Office of Federal Contract Compliance Programs (“OFCCP”) has announced a new initiative to scrutinize employers’ use of criminal histories during pre-employment background checks for possible systemic discrimination. OFCCP’s Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin”, issued on January 29, 2013, immediately applies to all covered federal contractors and subcontractors.

The EEOC previously revised its enforcement guidance under Title VII on April 25, 2012 with respect to employers’ consideration of arrest and conviction records of candidates in making employment decisions.  Noting the statistics reflecting that African-Americans and Hispanics are convicted at a rate disproportionately greater than their representation in the population, the EEOC warned that employers may only justify a practice that results in disparate impact by demonstrating a business necessity for the use of such screening criteria.

The OFCCP adopted the EEOC’s position set forth in its Enforcement Guidance, which requires that employers conduct an individualized assessment of the job- relatedness of prior criminal arrests and convictions to positions for which candidates have applied, and that if disparate impact exists, employers must validate the use of background checks as a screening device. The OFCCP also cited the statistics reflecting that minority candidates are disproportionately affected by employers’ use of criminal background checks as a hiring criterion. For example, OFCCP cited that African Americans comprise about 13 percent of the population, but constitute 40 percent of the currently-incarcerated population.  The OFCCP Directive also notes that 1 in 15 African-American men and 1 in 36 Hispanic men, as compared to 1 in 106 White men, are incarcerated during their lifetime.

To avoid unnecessary exposure, OFCCP recommends that government contractors adhere to EEOC’s recommended “best practice” of refraining from making inquiries about criminal history on job applications. Where such information is requested, OFCCP urges an “individualized assessment” that is “narrowly tailored to the essential job requirements and actual circumstances under which the jobs are performed.”

Such an assessment should include consideration of (1) the nature or gravity of the offense or conduct; (2) the time elapsed since the offense, conviction, and/or completion of the sentence; and (3) the nature of the position sought or held.

In view of this new Enforcement Directive, federal contractors and subcontractors should ensure that consideration of criminal histories in the hiring process is job-related and consistent with business necessity, and undertake a careful individualized consideration of the candidate and the position.  Contractors might also periodically conduct an adverse-impact analysis of the use of criminal history screens and other background checks.   If adverse impact is reflected by that analysis, consider validation of the criteria and/or changes in the use of criminal background checks.