On January 29, 2013, OFCCP issued Directive 306,"Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin." These frequently asked questions answer some common questions about Directive 306, which has been renumbered as Directive 2013-02.
- How is Executive Order 11246 relevant to the use of criminal history information?
- Doesn’t OFCCP’s Directive make people with criminal records a protected class under the Order?
- Does the Executive Order or Directive prohibit contractors from obtaining criminal background reports about job applicants or employees?
- Under what circumstances is it lawful for a contractor to use criminal history information to make hiring or other selection decisions?
- When will relying on criminal history information be job related and consistent with business necessity?
- What if a state law requires exclusion of people with certain criminal convictions from certain jobs?
- What if a federal law requires exclusion of people with certain criminal convictions from certain jobs?
- Is it a new idea to apply the Executive Order to the use of criminal history information?
- Why did OFCCP decide to issue a Directive on this issue?
- What does the Training and Employment Guidance Letter (TEGL) issued by the Employment and Training Administration (ETA) and Civil Rights Center (CRC) have to do with OFCCP and federal contractors?
- How do the procedures established by the TEGL affect federal contractors that post their job announcements with American Job Centers or other entities in the workforce development system?
How is Executive Order 11246 relevant to the use of criminal history information?
There are two ways in which a contractor’s use of criminal history information may violate Executive Order 11246, as amended (the Order or EO 11246). First, the Order prohibits federal contractors from treating job applicants or employees with criminal records differently because of their race, color, religion, sex, sexual orientation, gender identity or national origin ("disparate treatment discrimination"). Title VII of the Civil Rights Act of 1964 also prohibits such conduct.
Second, even where contractors apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately exclude people of a particular race or national origin ("disparate impact discrimination"). If the contractor does not show that an exclusion that has adverse impact is "job related and consistent with business necessity" for the position in question, the exclusion is unlawful under the Order and Title VII.
Doesn’t OFCCP’s Directive make people with criminal records a protected class under the Order?
No. The Directive merely applies well-established equal employment opportunity legal principles to employment exclusions based on criminal-history information.
Does the Executive Order or Directive prohibit contractors from obtaining criminal background reports about job applicants or employees?
No. Nothing in the Order or Directive 306 (renumbered as Directive 2013-02) regulates the acquisition of criminal history information. Rather, the Order prohibits contractors from using criminal history information to limit employment opportunities on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin unless the screen is job related, consistent with business necessity, and applied in a nondiscriminatory manner. However, as the Directive mentions, another federal law, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA), does establish several procedures that contractors and other employers must follow when they obtain criminal history information from third-party consumer reporting agencies. In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.
Under what circumstances is it lawful for a contractor to use criminal history information to make hiring or other selection decisions?
Contractors may use criminal history information to make employment decisions when doing so will not result in discrimination (disparate treatment or disparate impact) on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. Even where the use of such information has a disparate impact, contractors may still use the information to apply their screen if doing so is job related and consistent with business necessity. In addition, contractors must comply with the FCRA and potentially applicable state and local laws that restrict employer consideration of such information. These circumstances are discussed in more detail in the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., EEOC No. 915.002 (Apr. 25, 2012), available at www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions ("EEOC Enforcement Guidance") (the EEOC is the lead agency for matters relating to the interpretation of Title VII, which OFCCP follows in interpreting the nondiscrimination requirements of the Executive Order).
When will relying on criminal history information be job related and consistent with business necessity?
A contractor meets the "job related and consistent with business necessity" defense if:
- The contractor validates the criminal conduct exclusion for the position in question under the Uniform Guidelines on Employee Selection Procedures (UGESP), 41 CFR Part 60-3 (where there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
- The contractor develops a targeted screen considering at least the nature of the crime, the time elapsed since the commission of the crime, and the nature of the job. Using a targeted screen allows for an individualized assessment of the individual’s criminal history and its relevance to the job. Although an individualized assessment is not necessary in all circumstances, the use of a blanket screen, which does not involve individualized assessment, is more likely to violate the Executive Order.
See EEOC Enforcement Guidance, at Section V-B.
What if a state law requires exclusion of people with certain criminal convictions from certain jobs?
State and local laws or regulations are preempted by the Executive Order and Title VII if they require or permit an employment practice that is unlawful under that Order. Thus, compliance with a state law as to the use of criminal screens is not a defense to an EO 11246 or a Title VII violation if the contractor cannot meet the standards for business necessity and job-relatedness. See EEOC Enforcement Guidance, at Section VII.
What if a federal law requires exclusion of people with certain criminal convictions from certain jobs?
Unlike state laws, federal laws and regulations that restrict or prohibit employing individuals with certain criminal records do provide a defense to a claim of a violation of the Executive Order. However, if an employer decides to use an exclusion that goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to analysis under the Executive Order or Title VII. See EEOC Enforcement Guidance, at Section VI.
Is it a new idea to apply the Executive Order to the use of criminal history information?
No. Applying nondiscrimination analysis to the use of criminal-history information in employment decisions is well-established. OFCCP follows EEOC’s interpretation of Title VII in interpreting the nondiscrimination provisions of Executive Order 11246, and the EEOC has long investigated and decided Title VII charges from individuals challenging the discriminatory use of criminal history information. Several federal courts have analyzed Title VII as applied to criminal record exclusions as well. See Questions and Answers about the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, available at www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions. Moreover, the EEOC issued policy statements on this issue in 1987 and 1990, and also referenced it in its 2006 Race and Color Discrimination Compliance Manual Chapter. Id.
Why did OFCCP decide to issue a Directive on this issue?
In 2012, both EEOC and two Department of Labor agencies, the Employment and Training Administration and Civil Rights Center, issued guidance on this topic. OFCCP determined that it would be helpful to contractors and compliance officers to ensure that they are aware of these guidance documents and how they apply to them.
What does the Training and Employment Guidance Letter (TEGL) issued by the Employment and Training Administration (ETA) and Civil Rights Center (CRC) have to do with OFCCP and federal contractors?
The TEGL applies to American Job Centers and other entities in the workforce development system with regard to posting job announcements submitted by employers to the Job Bank that include some sort of exclusion of people with criminal records. Federal contractors covered by the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) are required to post certain job announcements with such entities, and other federal contractors use these entities for postings as well. In addition, the TEGL directs the Job Centers to refrain from screening out or refusing to make referrals to an employer because an applicant has a criminal history record. For these reasons, OFCCP determined that it would be helpful to contractors to ensure that they are aware of the TEGL and how the procedures it dictates might affect them.
The TEGL is available at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=9230.
How do the procedures established by the TEGL affect federal contractors that post their job announcements with American Job Centers or other entities in the workforce development system?
- When a contractor registers with an American Job Center (or other covered entity) to use its Job Bank, the covered entity must send the contractor a prescribed notice explaining that the covered entity must comply with federal civil rights laws which, due to the likely adverse impact of criminal record exclusions on protected groups, generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history.
- Covered entities must use a system (automated or otherwise) for identifying vacancy announcements that include hiring restrictions based on arrest and/or conviction records.
- When covered entities identify job postings that exclude individuals based on arrest and/or conviction history, they must provide contractors that have posted these vacancy announcements a notice that gives them the opportunity to remove or edit the vacancy announcement.
- Covered entities may continue to post vacancy announcements excluding candidates based on criminal history only when accompanied by a notice to job seekers explaining that the exclusions in the posting may have an adverse impact on protected groups and informing them that individuals with criminal history records are not prohibited from applying for the posted position.
- Covered entities that work with contractors to screen or refer individuals for vacancy announcements, job orders or employment-related training must refrain from screening out or refusing to make referrals to that contractor because an applicant has a criminal history record. Job seekers who are referred for positions where the job posting takes criminal history into account will receive the same notice as in the above bullet point.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Last updated on January 29, 2013