On January 29, 2013, the OFCCP issued a directive which discourages the use of blanket hiring exclusions against individuals with criminal records. According to the OFCCP, relying on applicants’ criminal histories can result in a disparate impact on certain protected groups. The directive adopted the Equal Employment Opportunity Commission’s (“EEOC”) guidance on using criminal background checks during hiring issued last year. Additionally, the OFCCP recommended that contractors follow the EEOC’s “best practices” for employers to avoid liability for discrimination. These “best practices” include ensuring that policies and procedures to screen applicants for criminal conduct require an individualized assessment, and that such policies are narrowly tailored to fit the requirements of open positions. As stated in the directive, the OFCCP “recommends that contractors, as a general rule, refrain from inquiring about convictions on job applications.” If those inquires are made, however, contractors should limit the inquiries to convictions that demonstrate unfitness for the particular position.
Action: Contractors and subcontractors should review the OFCCP directive regarding use of criminal records in hiring, available here. Contractors should then examine their hiring policies to ensure they are satisfying both the EEOC and OFCCP directives regarding criminal records.