OFCCP Directs Federal Contractors to Comply with EEOC Criminal History Guidance

 

On January 31, 2013, the Office of Federal Contract Compliance Programs (OFCCP) issued a directive providing information to federal contractors and subcontractors and federally-assisted construction contractors and subcontractors (contractors) and to OFCCP personnel about complying with federal non-discrimination laws.

This directive gives notice that the OFCCP adopts the enforcement guidelines established by the Equal Employment Opportunity Commission (EEOC) on the use of arrest and conviction records in employment decisions on April 25, 2012. It contends that although individuals with criminal history records are not a protected group under the Title VII of Civil Rights Act of 1964, antidiscrimination laws may be violated when criminal records are being considered because it may lead to a disparate adverse impact on members of protected groups.

The OFCCP warns against (i) excluding people from employment based on the mere existence of a criminal history record that do not take into account other factors; (ii) placing job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called "clean" criminal records; and (iii) screening and refusing to make referrals because an applicant has a criminal history record. Covered entities are encouraged to analyze their policies and practices to ensure compliance with the guidelines.

The EEOC guidance states certain factors must be considered to determine whether criminal history information is relevant to an exclusion of employment. In determining whether criminal history information is "job related and consistent with business necessity," the employer must consider:
(a) the nature and gravity of the offense or conduct;
(b) the time that has passed since the offense, conduct and/or completion of the sentence; and
(c) The nature of the job held or sought.

Additionally, the EEOC guidance strongly recommends that employers offer applicants an individualized assessment process through which they can provide additional information about the risks that they would pose to the employer.

The OFCCP also recommends other EEOC best practices, such as removing questions from applications that ask applicants to disclose their criminal history.

Finally, the OFCCP references the Employment and Training Administration’s (ETA) Guidance Letter dated May 25, 2012. The ETA’s letter is intended to help covered entities comply with their nondiscrimination obligations when serving the population of individuals with criminal records, and to ensure that exclusionary policies are not in violation of federal guidelines.

The OFCCP directive is effective immediately.

For more information, you may directly access:
OFCCP Directive No. 302: http://www.dol.gov/ofccp/regs/compliance/directives/dir306.htm
EEOC’s Enforcement Guidelines: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
ETA’s Guidance Letter: http://wdr.doleta.gov/directives/attach/TEGL/TEGL_31_11_acc.pdf