Unbiased Employment: Background Checks and the EEOC

As an employer that conducts background checks, you’re probably familiar with the federal Fair Credit Reporting Act (“FCRA”) and know that there’s certain obligations you may have under it (as well as under its state and local counterparts).

But did you know that by improperly using background checks, even if you fully comply with the FCRA to obtain those checks, you could find yourself in hot water with the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws.

In a joint statement with the Federal Trade Commission (FTC), one of the federal agencies that enforces the federal Fair Credit Reporting Act (FCRA), they want to make sure employers don’t use background information to discriminate against employees and applicants.

To read the full statement, click here.

According to the statement, when using background information to make employment decisions, “you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older).” This is true regardless of how you may receive the information. Even if you don’t partner with a background screening company, you should still be cautious that you don’t use background information you discover in a discriminatory manner.

To help employers think critically about their responsibilities under federal anti-discrimination laws, the EEOC has issued the following recommended guidelines:

• • Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).
  • Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older.
  • Be prepared to make exceptions for problems revealed during a background check that were caused by a disability.
• Remember to keep the EEOC’s anti-discrimination guidelines in mind when conducting background checks for employment purposes, as well as any applicable state and local anti-discrimination guidelines. These laws may prohibit discrimination against classes of people that the federal anti-discrimination laws do not. It is always a good idea to double-check your practices with a trusted legal advisor to ensure that you’re not violating any federal, state, or local anti-discrimination laws. As the EEOC says, “In all cases, make sure that you’re treating everyone equally.”