Employment Background Checks and Anti-Discrimination Laws

Many employers conduct background checks to help them decide which job applicants to hire. A background check can also be a factor that employers consider when making decisions on whether to retain and promote employees.

Federal law allows employers to obtain several types of information on job candidates and current employees. A background check can include a check of a person’s employment history, criminal record, education, financial history, and other types of information.

Federal Anti-Discrimination Laws

Federal law also creates protections for the subjects of background checks. Employers are prohibited from using information obtained in a background check in a way that discriminates against candidates or current employees on the basis of certain characteristics. An employer may not discriminate on the basis of race, color, national origin, gender, religion, disability, age, or genetic information. The Equal Employment Opportunity Commission enforces anti-discrimination laws.

If a background check is conducted by a consumer reporting agency, it must comply with the Fair Credit Reporting Act. The FCRA requires an employer to tell a job applicant or current employee that the information obtained in a background check may be used to make a decision about employment and to obtain written consent. If the background check will include interviews about a person’s character, reputation, and lifestyle, the candidate has the right to a description of the nature and scope of the investigation that is conducted. The FCRA is enforced by the Federal Trade Commission.

How to Avoid Discriminating When Using Background Checks to Make Decisions

If you are an employer who wants to conduct background checks on prospective or current employees, you should be careful to make sure you do not use the information you obtain in a discriminatory way. Background checks should be required for all candidates for a specific position, not just people of a particular race, ethnicity, religion, age, or gender. The same questions should be asked and the same information should be obtained for all candidates. The same background information should not exclude candidates in one group from employment, retention, or promotion, but not others.

You should not try to obtain an applicant’s or employee’s genetic information or family medical history. Do not ask any medical questions before making a conditional offer of employment. If a person has already been hired, do not ask any medical questions unless you have valid and objective concerns about the person’s ability to do the job safely.

Be careful when making decisions based on background problems that tend to be more common in one group than others. For example, some crimes or financial problems may be more common in people of a particular age, race, ethnicity, or gender. If making a decision based on background information puts one group at a significant disadvantage, it has a “disparate impact” and could be considered illegal discrimination.

Contact DataCheck for Background Check Services

DataCheck has helped many businesses all across the United States conduct background checks to obtain information that they could use to help them make employment decisions. We can help you make sure you comply with federal anti-discrimination laws and treat all applicants in a fair and equitable manner. To learn more about our background check services, contact DataCheck today.