Last April, the Equal Employment Opportunity Commission issued an enforcement guidance regarding possible disparate impact discrimination resulting from employers' exclusion of applicants based on criminal histories. The guidance quoted arrest and conviction statistics by race, and provided employers with guidelines for excluding applicants based on such criminal histories. The agency stated that arbitrary or blanket exclusions could be deemed race discrimination.

On January 29, the Department of Labor's Office of Federal Contract Compliance Programs issued an agency directive aimed at similar practices by federal contractors. Although criminal history is not a protected category under the executive orders enforced by OFCCP, blanket hiring exclusions based on such backgrounds can result in disparate impact race discrimination.

OFCCP cited the EEOC guidance in establishing criteria for case-by-case exclusions based on criminal history. The contractor must take into account the age of the conviction, the seriousness of the offense, and the specific relationship between the criminal offense and the job applied for. These factors would be individually assessed for each applicant.

The agency also recommended (but does not require) that employment applications not include questions about criminal convictions. These questions could be raised after an applicant has been given a conditional offer of employment (pending legislation in several states would mandate removal of these questions at the application stage). Certain employers receiving federal hiring assistance will be required to list hiring restrictions based on criminal convictions on job vacancy notices.

Federal contractors can expect OFCCP to review the role of criminal convictions in the hiring process as part of compliance audits. Human resource professionals should be prepared to explain and defend any company policies that exclude applicants on this basis.