There are many hidden forms of discrimination in hiring practices. One such is the use of a criminal record to make hiring decisions. Job seekers with criminal records may be excluded from consideration solely on that basis. When there isn’t a bona fide business reason to do so, this may have discriminatory implications. While on the surface, it may not seem discriminatory, when factoring in that the number of Americans with a criminal record is disproportionately Black and Hispanic individuals, this can cause embedded barriers in employment policies and practices based on disparate impact. Disparate impact occurs when a seemingly neutral policy disproportionately affects members of a protected class.
To bring awareness to this form of discrimination, the OFCCP is joining others in recognizing April as Second Chance Month. This movement, headed by the National Association of Defense Attorneys, Prison Fellowship and others, uses this month to highlight the barriers faced by those with a criminal record, especially pointing out the “collateral consequences” of having a criminal record, even when a sentence has been served. Barriers to employment based on a criminal record is one such consequence.
In 2013, the OFCCP issued a directive and frequently asked questions to provide guidance of the use of criminal records in employment decisions. It’s important that federal contractors review this information and look at their employment processes to determine if there are barriers. If problem areas are found, contractors must develop and execute action-oriented programs to correct them. Making sure that exclusions are job related and consistent with business necessity can be one such review and correction. Forming relationships with service providers in local communities can also be an action-oriented step.
Additionally, some states have enacted “Ban the Box” regulations. These types of laws prohibit employers from asking applicants about criminal history on an initial job application. Some of these laws only apply to government employers, but some have been expanded to include private employers as well.
Federal contractors must consider many factors regarding employment practices and policies to continue to breakdown barriers to equal employment opportunities, including the use of blanket exclusion policies in hiring.