EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Conviction Records; Federal Employment

February 25, 2000

Dear [sanitized]

Your letter of January 7, 2000, addressed to the Equal Employment Opportunity Commission (EEOC), asking whether convicted felons are permanently barred from being employed by the federal government, has been referred to this office for a response.

The EEOC has responsibility of enforcing, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., which prohibits discrimination on the basis of race, color, sex, religion and national origin. Although Title VII does not on its face prohibit discrimination on the basis of conviction, the EEOC and courts have concluded that a policy or practice of excluding individuals from employment on the basis of their conviction records may have an adverse impact on certain minority groups in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Of course, employers facing such claims of unlawful discrimination can present more narrowly drawn statistics showing that certain minorities are not convicted at a disproportionately greater rate or that there is not an adverse impact in its own hiring process resulting from the conviction policy. If there is such impact, the EEOC has held that such a policy or practice is unlawful under Title VII in the absence of justifying business necessity. This principle generally applies to both the private and public (e.g., federal government) sector. However, eligibility (suitability) for federal employment in certain cases is determined by administrative regulations or several specific statutes which specifically cover automatic "debarment" (exclusion) from consideration for employment where an individual has engaged in certain behavior or has been convicted of committing certain type of crimes.

The Office of Personnel Management (OPM) has issued regulations on "Suitability" found at 5 C.F.R. Part 731 that establish criteria and procedures for making determinations of eligibility for federal employment. The regulations are used by OPM and the heads of other federal agencies which have been delegated this authority by that Agency to determine eligibility for federal employment. "Suitability" regulations are also used in conjunction with one of several specific federal statutes which mandate automatic "debarment" or exclusion of applicants from federal employment for certain behavior or convictions.

The various statutes covering automatic "debarment" (exclusion) from federal employment provide differing time periods of exclusion from eligibility for hire depending on the type of job sought and the nature of the criminal offense. For example, the period of

"debarment" may range from as few as five years from the date the conviction becomes final in cases involving "inciting, organizing, promoting, encouraging, engaging or aiding others to engage in riots or civil disorders" or to an "indefinite period" in those cases where an applicant is seeking a position which requires carrying a firearm and he/she has been "convicted of a felony." Similarly, there is an "indefinite debarment period" for those individuals seeking federal employment who have been convicted of "committing treason against the United States." Thus, depending on the type of employment sought and the nature of the criminal offense, a convicted felon may be eligible for some types of federal employment. Again, however, temporary or indefinite "debarment," will be determined by the OPM regulations, the applicable statute covering automatic debarment, the nature of the conviction, and the type of job sought by the applicant.

We hope this information has been helpful. Please note that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of section 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b).

Sincerely,

James E. Cooks
Senior Attorney Advisor

This page was last modified on April 27, 2007.