EEOC Issues Federal Workforce Reports Focused on Workers With History of Arrest or Conviction

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today released two companion reports examining the federal employment of workers with arrest or conviction records. The EEOC developed these reports in support of President Biden’s Executive Order 14035, which calls for the expansion of federal employment opportunities for individuals with arrest or conviction records and requires the evaluation of barriers to federal employment faced by these individuals. These reports show that federal agencies are hiring qualified individuals with prior arrests or convictions in their background checks.

“It is our hope that the information contained in these reports will assist federal agencies in understanding long-standing challenges that the persons with arrests and convictions face when trying to obtain life-changing employment,” said Dexter Brooks, associate director of the EEOC’s Office of Federal Operations. “As the nation’s largest employer, the federal government is uniquely positioned to demonstrate how to improve opportunities for this underserved community.”

The first report, Second Chances Part I: Federal Employment for Workers With Past Arrests or Convictions, explores how likely workers with prior arrests or convictions were to work in the federal sector and whether “ban-the-box” laws that govern the timing of background checks during the recruiting process better protect applicants from discrimination. The main findings of this report include:

• Between 2003 and 2017, respondents who had been previously incarcerated were about half as likely to be employed in the federal sector compared to those without records. Data is lacking to explain that shortfall. While it is possible that hiring managers are less likely to hire applicants with any kind of incarceration, conviction, or arrest record, it is also possible that the shortfall is the result of a belief, at least in part, by individuals with arrest and conviction records that the federal government may not hire them.
• Delaying inquiry into arrest and conviction records until later in the recruiting process may make it easier to root out unlawful discrimination. “Ban-the-box” laws and policies prohibit criminal background checks until after a conditional job offer is made. Following implementation of ban-the-box laws for state and local public employers, more workers filed EEO complaints and the EEOC found reasonable cause to believe that discrimination had occurred in more of those complaints.
• Additional research and data are necessary to assess policies that facilitate federal employment for formerly incarcerated workers and those with prior arrests and convictions. This report provides a roadmap for additional research, which led to the second report.

The second report, Second Chances Part II: History of Criminal Conduct and Suitability for Federal Employment, examines how often background investigations for federal employment found criminal conduct issues and how often investigations with criminal conduct issues received an unfavorable suitability determination. Suitability determinations are conducted to consider whether a person’s character or conduct may have an impact on the integrity or efficiency of federal service, and they decide whether the person is suitable for federal employment. The main findings of the second report include:

• Between fiscal year (FY) 2018 and FY 2020, 22.3% of suitability investigations for federal civil service positions identified criminal conduct issues.
• When criminal conduct was identified as an issue for a civil service position, 76% of determinations were favorable, allowing the candidate to work in the federal government. Only 2% were unfavorable, leading to actions such as not hiring the job candidate or removing the applicant from their current position after starting.
• When criminal conduct was identified as an issue for a civil service position, 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).

“Persons with arrest and conviction records who have rehabilitated and present a low risk for recidivism need opportunities for stable employment,” said Brooks. “Employment in the federal government may help address some of the barriers these individuals face and ease their reintegration into society.

Federal equal employment opportunity 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. The EEOC has issued multiple policy statements on the appropriate consideration of arrest or conviction records in employment decisions. The most recent and comprehensive of these documents is Enforcement Guidance, Consideration of Arrest and Conviction Guidance in Employment Decisions under Title VII of the Civil Rights Act. It clarifies how an employer’s use of an individual’s criminal history in making employment decisions may violate the prohibition against employment discrimination prohibited by Title VII.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.