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OFCCP Issues Guidance on Use of Criminal Records in Employment Decisions

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has posted a Directive on “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.” The Directive incorporates guidance issued on the same subject by the EEOC. The OFCCP Directive and the EEOC Enforcement Guidance emphasize the racial and ethnic disparities reflected in incarceration rates and advise contractors to proceed with caution when relying on job applicants’ criminal records for employment decisions. The OFCCP warns that policies and procedures that categorically exclude individuals based on criminal records and do not take into account the nature and age of an offense may violate federal antidiscrimination laws such as Title VII. The agency clarifies that this is because an automatic bar to hiring those with a criminal record will likely result in an adverse impact on certain racial or ethnic groups. If an employer’s exclusion policy creates adverse impact on a protected class, it will need to prove that it is job-related and consistent with business necessity.

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