EEOC: When conducting background checks, employers should take a holistic approach with consideration for mitigating circumstances. Image: Andrey_Popov/Shutterstock.com By: FEDweek Staff
In a pair of new reports, the EEOC has described the impact of a criminal record in decisions regarding whether a job applicant is deemed “suitable” for federal employment and whether the person ultimately is hired. The reports come shortly after issuance of final rules generally restricting what agencies may ask about a criminal record before a tentative job offer is made. The executive summaries of the two reports are below.
Executive Summary
In June 2021, President Biden signed Executive Order 14035 to advance diversity, equity, inclusion, and accessibility in the Federal workforce. This order called for an evaluation and expansion of Federal employment opportunities for formerly incarcerated persons.
Before this executive order, in fiscal year (FY) 2020, the U.S. Equal Employment Opportunity Commission (EEOC) formed a task force to identify vulnerable workers and determine ways to better serve them. The EEOC identified formerly incarcerated persons as one category of vulnerable workers due to the challenges they face in securing employment after their incarceration. In the FY 2017-2021 Strategic Enforcement Plan, the EEOC identified the use of background checks related to arrest and conviction records as among its national substantive area priorities because African Americans and Latinos are disproportionately incarcerated.
This report comes from the EEOC’s Reports and Evaluations Division at the Office of Federal Operations (OFO). It asks two related questions:
1) How likely are people with prior arrests or convictions to work in the Federal sector?
2) Could regulating the timing of background checks during the recruitment process (e.g., ban-the-box policies) protect those applicants with a prior arrest or conviction from discrimination?
How Likely Are People With Prior Arrests or Convictions to Work in the Federal Sector?
In answering the first question, this report first notes the lack of systematic data collection tracking employment outcomes for workers with prior records of incarceration. Using a nationally representative survey with data from 2003 through 2017, this report finds that people with prior records were nearly half as likely to be Federally employed compared to those without such records. This gap suggests that there were roughly 300,000 fewer previously formerly incarcerated workers in the Federal workforce than expected.
The current study does not have sufficient data to fully assess the causes of lower rates of Federal employment for individuals with a history of incarceration during the 2003 to 2017 time period. For instance, it is possible that people with incarceration records erroneously believe they are barred from Federal employment and self-select out of the applicant pool. It is also possible that hiring managers are less likely to hire applicants with any kind of record -incarceration, arrest, or conviction. Additional research directly examining the hiring practices of Federal agencies towards workers with a record is necessary to better understand how employment for these community members could be increased.
The lack of available data constrains the ability to measure Federal employment for workers with conviction, arrest, or incarceration records. Therefore, one high-value policy change would be to track the number of Federal workers with arrest or conviction records over time. Existing data could be leveraged to generate such a measure. For example, researchers could use data from the Defense Counterintelligence and Security Agency (DCSA)—the central processor of background investigations for the Federal government—to determine the proportion of Federal employees that had a background check return an arrest or conviction record. Tracking this statistic over time would allow the EEOC and other Federal agencies to assess how successful different policies and procedures are in expanding Federal employment opportunities to formerly incarcerated persons. The EEOC should coordinate with the Office of Personnel Management (OPM) and the DCSA to gather data on suitability adjudications, with a focus on the characteristics of applicants whom employers deem to be appropriate to hire for a given position.
Could Ban-the-Box Policies Protect Applicants With a Prior History of Arrest or Conviction From Discrimination?
To answer the second question, this study looks to lessons learned from outside the Federal sector. Researchers examined data on complaints filed with the EEOC where complainants alleged that their past exposure to the criminal legal system was improperly adjudicated. The results show that so-called ban-the-box policies, which generally prohibit criminal background checks until after a conditional job offer is made, led to significantly more and more meritorious complaints filed per month. Specifically, ban-the-box policies made it more likely that investigators were able to find enough evidence to proceed further in the complaint process. Without additional data and analysis, it is difficult to determine the exact cause behind these results. It is possible that, after ban-the-box timing restrictions were imposed, employers engaged in more discrimination based on arrest and conviction records. However, it may also be the case that applicants were more aware of their protections after timing restrictions were implemented.
Title 5 of the Code of Federal Regulations regarding Recruitment, Selection, and Placement (General) and Suitability (5 CFR parts 330 and 731) prohibit Federal employers from collecting criminal history information, unless an exception has been granted until after until after a conditional job offer has been made and accepted. The analysis presented in this study suggests that such a policy may be helpful in enforcing Title VII and should be continued. These recruitment rules were expanded to Federal contractors in December 2021, which may improve Title VII monitoring and enforcement even more.
To ensure adherence to best practices, recruiters should follow these rules and regulations, and the EEOC should conduct follow-up research to ensure Federal employers are following best practices. Applicants should also be made aware of their rights regarding the accuracy of background checks and the appropriate uses of arrest and conviction records in employment decisions.
Executive Summary
Federal equal employment opportunity (EEO) laws do not prohibit the consideration of arrest or conviction records in making employment decisions unless doing so results in discrimination based on race, national origin, or another protected category. However, the U.S. Equal Employment Opportunity Commission (EEOC) has identified the use of background checks in recruitment and hiring among its national substantive area priorities, as background checks disproportionately impact African Americans and Latinos.
Federal agencies may consider “criminal or dishonest conduct” as a factor when determining the suitability of applicants for Federal employment. For most positions, however, criminal convictions do not automatically disqualify an applicant from Federal employment.
In this report, the EEOC uses data from the Defense Counterintelligence Security Agency to learn how often background investigations found criminal conduct issues, and how often cases with criminal conduct issues received an unfavorable suitability determination. The report also examines data from a survey on Federal sector suitability adjudication policies and practices.
Main Findings
Between FY 2018 and FY 2020, 22.3% of Federal background investigations for civil service positions found criminal conduct issues. For positions with an unknown service type, 21.3% of investigations found criminal conduct issues.
Of adjudications that included criminal conduct as an issue, only 2.0% had unfavorable determinations leading to actions such as not hiring the job candidate or removing the applicant from their position after starting.
In cases with criminal conduct as an issue, over three-fourths of determinations were favorable, allowing the candidate to work in the Federal Government (76.0% of civil service adjudications and 88.4% of unknown service type adjudications).
When criminal conduct was an issue in civil service cases, applicants and appointees were more likely to withdraw their applications, resign, or be removed from their position before an adjudication determination was made (21.7% vs. 14.5% of all civil service cases).
Similarly, in unknown service type cases, applicants and appointees were more likely to withdraw their applications, resign, or be removed from their position before an adjudication determination was made when criminal conduct was an issue (7.2% vs. 4.7% of all unknown service type cases).
Qualitative data showed that in 2022, Federal agencies were aware of the suitability adjudication requirements in 5 CFR Part 731 and had positive opinions on those regulations.
Main Recommendations
Based on these findings, the EEOC recommends that:
The Federal Government widely publicize this report’s finding that Federal agencies are hiring persons with criminal conduct issues in their background checks.
Federal agencies continue to assess the length of their suitability process and look for ways to streamline it.
Federal agencies assess the results of exit surveys from appointees who resigned before receiving a suitability determination in cases where criminal conduct had been flagged as an issue.
When conducting background checks, employers should take a holistic approach with consideration for mitigating circumstances.
With certain exceptions, a hiring agency may not make specific inquiries concerning an applicant’s criminal or credit background in oral or written form unless the hiring agency has made a conditional offer of employment to the applicant. Persons with a history of arrest, incarceration, or criminal conduct who have rehabilitated and present a low risk for recidivism need opportunities for stable employment. Employment in the Federal Government may help address some of the barriers that persons with past criminal conduct face and ease their reintegration into society.
