At the beginning of February 2013, the Labor Department’s Office of Federal Contract Compliance Programs (“OFCC”) issued Directive 306 warning federal contractors to carefully consider their nondiscrimination obligations before adopting hiring practices that exclude applicants based on their criminal history records. In other words, federal contractors and subcontractors need to be cautious about how they use criminal history records.
What Employers Should Already Know: Employers should know that Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, national, origin, religion, or sex. If you are a federal contractor or subcontractor you should also know that Executive Order 11246, the enforcement of which is overseen by the OFCCP, prohibits federal contractors from discriminating in employment decisions based on race, color, national origin, religion, or sex. This means that in hiring decisions, federal contractors cannot engage in disparate treatment (meaning intentionally treating members of protected groups differently) or disparate impact (meaning using policies and practices that are neutral on their face, but have a disproportionate impact on members of protected groups and are not job-related and consistent with business necessity).
What Some Employers Might Not Know: Some employers might be thinking: “I have every right to exclude applicants with criminal records from working for me.” At some level that reasoning seems logical, but the employer would be wrong, at least in part. To be clear, federal laws (emphasis is on federal) do not prohibit an employer from requiring applicants to provide information about arrests, convictions or incarceration. Moreover, under applicable federal laws, a criminal history record alone does not constitute a protected class. However, employers may not treat people with the same criminal records differently because of their race, national origin or another protected characteristic.
To be clear, merely having a criminal history record does not place someone into a protected group under applicable federal laws. However, federal antidiscrimination laws may be implicated when criminal records are considered in the hiring process. Indeed, due to racial and ethnic disparities in our criminal justice system, job postings containing blanket exclusions of anyone with any kind of conviction or arrest record may be in violation of federal law.
How Employers Get Themselves Into Trouble:
Scenario No. 1: The Disparate Treatment Scenario
A closely held private corporation operating as a federal contractor, owned and operated by a family of the Christian faith, runs criminal background checks on all its applicants. Per the contractor’s hiring policy, they will not hire anyone convicted of a DUI within the past three years as a truck driver for their shipping operations. However, the family that owns the company consistently waives this requirement when the applicant a member of their church, but not for members of other religious organizations.
How this is wrong: The employer is treating people with the same criminal records, i.e., DUIs, differently based on their religious affiliation.
Scenario No. 2: The Disparate Impact Scenario
A federal contractor has a hiring policy that prohibits anyone who was ever convicted of any crime from being hired.
Why this is wrong: This blanket prohibition against hiring anyone with a conviction is going to have a greater impact on blacks and Hispanics who have higher conviction rates than other races.
Precautions that Employers Should Take: First, the OFCCP recommends that contractors, as a general rule, refrain from inquiring about convictions on job applications and that when contractors make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.
Arrest Records: With respect to arrest records, the OFCCP recommends that employers allow an applicant to explain the circumstances of the arrest to determine whether the conduct underlying the arrest justifies an adverse employment action. Keep in mind that the arrest does not necessarily mean that the person committed a crime and even if they did, the crime might not have any correlation to the job position.
Ensure that the Criminal Conduct is Job Related and Consistent with Business Necessity: Exclusions of an applicant based on the applicant’s criminal history report should only occur where the applicant’s criminal conduct is job related and consistent with business necessity. For example, if the job is a preschool teacher, eliminating the candidate because he or she was convicted for child molestation two years ago appears sufficiently job related and consistent with business necessity. However, if the job is a computer programmer, eliminating the candidate because he or she was convicted of driving without a license 10 years ago does not appear job related or consistent with business necessity.
Be Prepared to Defend Your Position: To establish that a criminal conduct exclusion that has an adverse impact is job related and consistent with business necessity, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risk inherent in the duties of a particular situation. The EEOC has described two circumstances where it believes employers will consistently meet the “job related and consistent business necessity” defense. The first circumstance is where the employer validates the criminal conduct exclusion for the position in question in accordance with the Uniform Guidelines on Employee Selection Procedures (“UGESP”). For some employers this can be a costly process. Therefore, if the employer does not go through the validation process in accordance with the UGESP, the EEOC has outlined three factors that the employer should use as a starting point for analyzing how specific criminal conduct may be linked to particular positions. The three factors that are relevant to whether a criminal conduct exclusion is “job related and consistent with business necessity” are as follows:
- Consider the nature and gravity of the offense or conduct. This is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position.
- Consider the time that has passed since the offense, conduct and/or completion of the sentence: Employer policies typically specify the duration of the criminal conduct exclusion. The amount of time that has passed is probative of the risk the applicant poses in the position in question. Relevant and available information to make this assessment includes studies demonstrating how much the risk of recidivism declines over a specified time. In other words, the employer should not just set the duration arbitrarily. The employer needs to research this. If the employer is excluding applicants with convictions within the last 7 years, the employer should be prepared to explain what is different about an applicant who was convicted 5 years ago from one that was convicted 7 years ago. Otherwise the duration might appear arbitrary.
- The nature of the job sought or held: It is important to identify the particular jobs subject to the exclusion. Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it bears a demonstratable relationship to successful performance of the jobs for which it was used.
Conduct Individualized Assessments: The OFCCP advocates for individualized assessments rather than blanket prohibitions based on criminal history reports.
Confidentiality: Employers should always be mindful of the confidential nature of applicants’ and employees’ criminal records and should use such information only for its intended purposes.
Check State and Local Laws/Regulations: It is also important for employers to know that various states and cities have enacted additional laws and regulations governing employer’s use of criminal records, so it is always important for employers to be familiar with the state and local laws of the jurisdiction where they are operating. For example, in California, employers cannot ask applicants about certain marijuana convictions.
In closing, although some employers may recoil at the thought of hiring an employee with a criminal history, by having a closed mind the employer might be missing out. For example, in researching this blog I did a Google search of famous people with criminal records. These are three of the names that I found: Nelson Mandela, Johnny Carson, and Bill Gates. Now just think about what great talent an employer with a blanket criminal record exclusion would be missing out on.
The attorneys at Harmon & Davies are dedicated to serving the Labor and Employment Law needs of employers. We are here to assist employers with crafting hiring policies that include criminal history policies.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
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