In its ongoing effort to enact policies that prohibit intentional discrimination on the basis of race, national origin, or other protected groups, the Office of Federal Contract Compliance Programs (OFCCP) issued a new directive on January 29, 2013, Directive 306. Directive 306 cautions Federal Contractors to be mindful when making employment decisions based on criminal history records of job applicants. The Directive adopts the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records “best practices,” which outline how employers can avoid liability for discrimination based on the use of criminal records in employment. The EEOC is the Federal Agency that administers and enforces Title VII of the Civil Rights Act of 1964.
As highlighted in Directive 306, federal contractors need to be mindful of 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.”
OFCCP Directive 306 draws attention to Pew Center data which highlights the racial and ethnic disparities reflected in American arrest and incarceration rates, which skew more towards African Americans and Hispanics [i].
- One in 106 white men, one in 36 Hispanic men, and one in 15 African American men are incarcerated. [i]
- One in 31 adults is under correctional control (i.e., probation, parole, or incarceration), including one in 45 white adults, one in 27 Hispanic adults and one in 11 African American adults. [i]
- Racial and ethnic disparities may also be reflected in other criminal history records. For example, although African Americans constitute approximately 13 percent of the overall population, they account for 28 percent of those arrested and almost 40 percent of the incarcerated population. [i]
The Directive stipulates that contractors should carefully consider their legal obligations before adopting hiring policies that reject candidates based on their criminal histories. The OFCCP recommends the following best practices:
- The contractors should ensure that hiring and screening policies are effective in linking job requirements to the specific offenses that may demonstrate unfitness for performing such jobs. It’s recommended that employers factor in the nature and gravity of the offense, time passed since the offense, and the nature of the job held or sought. [i]
- Refrain from inquiring about convictions on job applications altogether. [i]
- Limit inquiries to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.
- Ensure that individuals’ criminal records are kept confidential and used only for their intended purpose.
For more information on Directive 306, visit here.