Following publication of a recent United States Equal Employment Opportunity Commission ("EEOC") guidance on hiring applicants with criminal records, the Office of Federal Contract Compliance Programs ("OFCCP") issued similar guidance in its Directive 306.  The OFCCP noted that 1 in 36 Hispanic men and 1 in 15 African American men are incarcerated in the United States, whereas only 1 in 106 White men are incarcerated.  Recognizing this reality, the OFCCP has warned that federal contractors may be subject to disparate impact claims of discrimination if they exclude job candidates based on their arrest or conviction record.

As a result of the EEOC's and OFCCP's views, employers are well advised to review any policies or practices that create a blanket exclusion based on criminal history, including arrests.  Any such policy, in order to be free from successful challenge, must effectively link specific criminal conduct and its dangers, with the risks inherent in the duties of a particular position.  Thus, by way of example, a policy prohibiting the hiring of individuals with a criminal record for embezzlement into finance positions would almost certainly survive any legal challenge.

As a best practice, employers are advised to conduct individualized inquiries, as opposed to blanket exclusions, for applicants.  Such inquiries must be job related and consistent with business necessity.  Further, such inquiries must consider, at a minimum, the nature and gravity of the individual's criminal offense or conduct, the amount of time between the applicant's criminal conduct and the job application, and the nature, duties and essential functions of the position sought by the applicant.  For employers electing to maintain a policy with some form of blanket exclusion, we advise having the policy reviewed by legal counsel.

Federal contractors should consider the OFCCP's Directive 306 in their Affirmative Action Plan update, if they have a policy prohibiting hiring of applicants with criminal records.

As discussed in a prior legal update from our office, employers are reminded that under Massachusetts law, employers may not inquire regarding criminal history, including arrests, in an employment application.

If you have any questions on the OFCCP's Directive, please contact us.