Obama Administration: “Criminal” = “Minority”

Even though most employers ask applicants about their criminal history, I’m not sure how many actually conduct a criminal background check.  As far as I’m concerned, employers ought to be permitted to hire any individual they deem most qualified, and reject any individual they deem unqualified.  After all, a business’s primary goal is to be financially successful, which is difficult to do when you have a bunch of criminals (who by definition have a history of making poor decisions) working for you.  Well, the Office of Federal Contract Compliance Programs (OFCCP) has issued a directive warning employers that using criminal histories of applicants could count as racial discrimination.

(Directive 306)

1. SUBJECT: Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin

2. PURPOSE: The purpose ofthis [sic] Directive is to provide information to federal contractors and subcontractors and federally-assisted construction contractors and subcontractors (contractors) and to OFCCP personnel about: (1) the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations; (2) the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department ofLabor’s [sic] Employment and Training Administration (ETA) and Civil Rights Center (CRC); and (3) the Enforcement Guidance issued by the Equal Employment Opportunity Commission (EEOC) on April 25, 2012.

3. EFFECTIVE DATE: This directive is effective immediately.

4. BACKGROUND: In recent decades, the number of Americans who have had contact with the criminal justice system has increased exponentially. It is estimated that about one in three adults now has a criminal history record – which often consists of an arrest that did not lead to conviction, a conviction for which the person was not sentenced to a term of incarceration, or a conviction for a non-violent crime. On any given day, about 2.3 million people are incarcerated and each year 700,000 people are released from prison and almost 13 million are admitted to – and released from – local jails.

   Racial and ethnic disparities are reflected in incarceration rates. According to the Pew Center on the States, one in 106 white men, one in 36 Hispanic men, and one in 15 African American men are incarcerated. Additionally, on average, one in 31 adults is under correctional control (i.e., probation, parole, or incarceration), including one in 45 white adults, one in 27 Hispanic adults and one in 11 African American adults. Racial and ethnic disparities may also be reflected in other criminal history records. For example, although African Americans constitute approximately 13 percent of the overall population, they account for 28 ercent [sic] of those arrested and almost 40 percent of the incarcerated population.

   In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate impact on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

5. POLICY:
   1. EEOC Enforcement Guidance. The EEOC, as the federal agency that administers and enforces Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., issued guidance on the use of arrest and conviction records in employment decisions. This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFCCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

      As described in the Enforcement Guidance, the nondiscrimination principles of Title VII prohibit both “disparate treatment” – intentionally treating members of protected groups differently based on their protected status – and “disparate impact” – the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of protected groups, and are not job-related and consistent with business necessity. Although individuals with criminal history records are not a protected group under the applicable federal laws, antidiscrimination laws may be implicated when criminal records are being considered. For example, studies have shown that employers may treat whites with a criminal record more favorably than similarly-situated African Americans with the same or similar criminal record, which would be a form of disparate treatment. Additionally, OFCCP is aware of job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called “clean” criminal records.Due to racial and ethnic disparities reflected in the criminal justice system, these policies or practices will likely have a disparate impact on certain protected groups, in violation of federal law.

According to the Obama Administration, because so many minorities are criminals, it’s actually discrimination to not hire a criminal if they’re a minority.